Application by Master Builders Australia Limited - [2013] FWC 4576

1

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS 
awards) after first 2 years

Master Builders Australia Limited
(AM2012/48 and others)

Building, metal and civil construction industries

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 15 JULY 2013

Modern Awards Review 2012 - applications to vary the Building and Construction General 
On-site Award 2010 - modern award varied.

[1] The Fair Work Commission (the Commission) is required by the Fair Work 
(Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional 
Provisions Act) to conduct a review of all modern awards, other than modern enterprise 
awards or State Reference Public Sector Awards, as soon as practicable after 1 January 2012 
(the 2012 Review).

[2] Eight applications were made to vary the Building and Construction General On-site 
Award 20101 (Building On-site Award) in the 2012 Review:

 AM2012/48 - an application by the Master Builders Australia Limited (MBA);

 AM2012/129 - an application by the Construction, Forestry, Mining and Energy 
Union (CFMEU);

 AM2012/154 - an application by Australian Business Industrial (ABI); 

 AM2012/160 - an application by the Communications, Electrical, Electronic, 
Energy, Information, Postal, Plumbing and Allied Services Union of Australia 
(CEPU);

 AM2012/207 - an application by the “Automotive, Food, Metals, Engineering, 
Printing and Kindred Industries Union” known as the Australian Manufacturing 
Workers’ Union (AMWU) (AMWU);

 AM2012/227 - an application by the Chamber of Commerce and Industry WA 
(CCIWA); 

 AM2012/228 - an application by the Housing Industry Association (HIA); and

[2013] FWC 4576

DECISION


AUSTR FairWork Commission




 



[2013] FWC 4576

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 AM2012/340 - a further application by the MBA.

[3] Variations concerning apprentices sought within the applications by the MBA, the 
CFMEU, the CEPU and the HIA were referred to the 2012 Review Apprentices, Trainees & 
Juniors Full Bench and are not dealt with in this decision. The whole of the MBA application 
in AM2012/340 is in this category. The application by the CEPU in AM2012/160 concerned 
only apprentices and was wholly referred to the 2012 Review Apprentices, Trainees & Juniors 
Full Bench.

[4] The HIA application in AM2012/228 sought to vary clause 7.1 to add frequency of 
payment as a matter subject to flexibility arrangements, to insert a new clause 17.3(g), which 
would have the effect of subjecting the industry specific redundancy scheme to the terms of 
the flexibility term in clause 7 of the Building On-site Award and to vary clause 13.3 in 
relation to part-time work and inserting a new clause 19.9 in relation to annualised salary 
provisions. These variations were dealt with by the 2012 Review Award Flexibility Full 
Bench. The variation to clause 7.1 was not accepted2 and the variation to clause 17.3(g) was 
not pressed.3 The proposed variation of clause 13.3 and insertion of a new clause 19.9 were 
referred to the current proceedings before me for determination4 but were not pressed by the 
HIA.5

[5] The MBA application sought variations to various provisions of the Building On-site 
Award which it said purported to regulate work health and safety on the ground that they were 
not lawful. Those elements of the MBA application in AM2012/48 were considered and 
determined by the 2012 Review Work Health & Safety Full Bench decision of 12 December 
2012.6 Applications by the MBA, HIA and ABI to vary clause 38.2, in respect of annual 
leave, are being dealt with by the 2012 Review Annual Leave Full Bench.

[6] The ABI application sought variations to clause 38 - Annual leave, in respect of clause 
38.2 and inserting new clauses 38.4 and 38.5. These elements of the ABI application are being 
dealt with by the 2012 Review Annual Leave Full Bench.

[7] The Australian Industry Group’s (Ai Group) application in AM2012/221 seeking to 
vary clause 7.1 of the Building On-site Award and insert a new clause 41.11 in the 
Manufacturing and Associated Industries and Occupations Award 20107 (the Manufacturing 
Award) to make annual leave arrangements and the cashing out of annual leave, is a matter
subject to the flexibility term. The application relates to the Commission’s Model Award 
Flexibility clause which appears in all modern awards, including the Building On-site Award. 
It was dealt with by the 2012 Review Award Flexibility Full Bench.8

[8] The HIA application in AM2012/228 was amended during the course of the hearing of 
the matter before me in several respects:

 Variations sought in respect of specific conditions for the “residential building” 
sector of the building industry, including variations contained within the HIA 
submission of 8 March 2012 that identify some allowances as payable or not 
payable in respect of residential building work, were not pressed;9








[2013] FWC 4576

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 A variation to clause 9.7 in relation to dispute resolution training leave provisions 
was not pressed;10

 Variations sought in relation to the calculation of allowances (payable to 
employees in charge of plants at clause 21.13(b)) were not pressed;11

 A variation of the calculation of the leading hand payment in clause 19.2 was not 
pressed;12 and

 A variation in relation to the regularity of payments under clause 31.3–Payment of 
wages was not pressed13 but would be pursued through the 2012 Review Award 
Flexibility Full Bench hearings.

[9] Further, a number of other variations proposed in the HIA application in AM2012/228 
were amended during the course of the hearing,14 being pressed in an amended form in the 
HIA submissions of 21 September 2012:

 Variations sought in respect of the payment of the living away from home 
allowance under clause 24.4, inclement weather under clause 23.8 and ordinary 
hours of work under clause 33 of the Building On-site Award were modified;15

 Modification of clause 19.1–Minimum wages;

 A new clause 10.3; to the effect that clause 10.2 - “At the time of engagement an 
employer will inform each employee, in writing, of the terms of their engagement 
and, in particular, whether they are to be daily hire, full-time, part-time or casual 
employees” - not apply to employees engaged after 1 January 2012.

[10] The matters raised in the various applications were dealt with through the filing of 
written submissions and evidence on the 2012 Review website, conciliation conferences on 
27 August and 6 December 2012 and hearings on 1 August, 7, 8 and 9 November, 
6 December 2012 and 21 March 2013.

[11] As late as 6 December 2012, organisations appearing in the matters before me sought 
a further opportunity to progress two issues—simplification of reference rates and an overhaul 
of the allowance provisions—which were reflected in numerous variations proposed. On 
11 December 2012, I decided to determine all claims on which submissions were complete 
and deferred consideration and determination on the reference rate issues and the allowance 
issues, in respect of which submissions had not been heard to allow the parties an opportunity 
to progress their discussions, subject to a process for their timely but separate determination 
within the 2012 Review.16

[12] Correspondence by the MBA on 1 February 2013, the terms of which were settled 
with the CFMEU, advised that agreement was pending in relation to the definition of the 
concept of ordinary hours/reference rates under the Building On-site Award. An agreed 
position between the MBA and the CFMEU was concluded and filed in the Commission. It 
was placed on the website dated 6 March 2013 and the matter was listed for further 
conference/hearing on 21 March 2013. 








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[13] In respect of its application in AM2012/48, the MBA did not press for the 
comprehensive overhaul of allowances reflected in its application during the 2012 Review but 
would further address the issues in the 2014 Review.17

[14] Similarly, the HIA advised, in correspondence dated 20 March 2013 and placed on the 
website, on 21 March 2013, that it no longer pursued that part of its application pertaining to a 
proposed new Schedule E - Schedule of Allowances, foreshadowing that it will press the 
claim in the 2014 Review. 

[15] Further, during the hearing of 21 March 2013, the CFMEU advised that it no longer 
pressed18 its application providing for a consolidated special rates allowance in compensation 
for all special rates, other than Hot work, Cold work, Confined space, Swing scaffold, 
Asbestos, Asbestos eradication, Suspended perimeter work platform, Towers allowance and 
Compressed air work and subject to a no-disadvantage provision.

[16] Given the agreed position reached between the CFMEU and the MBA in relation to 
the reference rate, and the absence of any objection from other interested parties and the 
decisions by the MBA, the HIA and the CFMEU not to press their broader applications in 
respect of allowances and the receipt of full submissions in relation to both issues, I am now 
in a position to determine all of the outstanding applications before me and do so in this 
decision.

[17] It is noted that the variations sought included expense related allowances and rates of 
pay, expressed as monetary amounts, at the level which existed prior to the Annual Wage 
Review19 adjustment, with effect from 1 July 2013 in PR536806. The level of such 
allowances and rates in the clauses considered in this decision is expressed at all times at the 
level prescribed from 1 July 2013.

Legislative provisions applicable to the 2012 Review

[18] The legislative provisions applicable to the 2012 Review were considered in a 29 June 
2012 decision of a Full Bench,20 which considered preliminary questions as to the approach to 
be taken in the 2012 Review. It is relied on for the purposes of this decision. The Full Bench 
found:

 “[T]he legislative context for the Review is principally set out in Item 6 of 
Schedule 5 of the Transitional Provisions Act”.21 It provides:

“6 Review of all modern awards (other than modern enterprise awards and 
State reference public sector modern awards) after first 2 years

(1) As soon as practicable after the second anniversary of the FW (safety 
net provisions) commencement day, FWA must conduct a review of all 
modern awards, other than modern enterprise awards and State reference 
public sector modern awards.








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Note: The review required by this item is in addition to the annual wage 
reviews and 4 yearly reviews of modern awards that FWA is required 
to conduct under the FW Act.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical 
problems arising from the Part 10A award modernisation 
process.

(2A) The review must be such that each modern award is reviewed in its 
own right. However, this does not prevent FWA from reviewing 2 or more 
modern awards at the same time.

(3) FWA may make a determination varying any of the modern awards in 
any way that FWA considers appropriate to remedy any issues identified in the 
review.

Note: Any variation of a modern award must comply with the requirements of 
the FW Act relating to the content of modern awards (see Subdivision 
A of Division 3 of Part 2-3 of the FW Act).

(4) The modern awards objective applies to FWA making a variation under 
this item, and the minimum wages objective also applies if the variation relates 
to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA 
considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the 
President of functions and powers of FWA) has effect as if subsection (2) of 
that section included a reference to FWA’s powers under subitem (5).”

 “[I]n conducting the Review the Tribunal is able to exercise its usual procedural 
powers, contained in Division 3 of Part 5–1 of the FW Act. It is also 
uncontentious that ss.577 and 578 are relevant to the conduct of the Review.”22

 “[A]ny variation of a modern award must comply with the requirements of the 
FW Act which relate to the content of modern awards. These requirements are set 
out in Subdivision A of Division 3 of Part 2–3 of the FW Act.”23

 “Any variation to a modern award arising from the Review must comply with 
s.136 of the FW Act and the related provisions which deal with the content of 
modern awards.”24








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 Section 138 is relevant to the 2012 Review . . . “The precise impact of s.138 is a 
question best considered in the context of a particular application.”25

 “[T]he Review is quite separate from both the 4 yearly reviews of modern awards 
provided for in s.156 and from the process of varying awards outside the 4 yearly 
review, as provided in ss.157 and 158.”26

 “[I]t is clear that the Tribunal must consider the specific matters mentioned in 
subitem 6(2)” of Part 2 of Schedule 5 of the Transitional Provisions Act “and 
those aspects of the FW Act to which . . . [the Full Bench] previously referred, it 
is not clear to us what other matters may be relevant in the context of a Review.” 
The Full Bench was “not prepared to determine this issue in the abstract, absent 
any factual context, but [indicated] . . . that a cautious approach should be taken to 
the consideration of matters others [sic] than those mentioned in subitem 6(2) and 
those aspects of the FW Act” it referred to.27

 “The award modernisation process required by Part 10A of the WR Act has been 
completed.”28

 “[A]wards made as a result of the award modernisation process are now deemed 
to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of 
the Transitional Provisions Act). Implicit in this is a legislative acceptance that the 
terms of the existing modern awards are consistent with the modern awards 
objective” and “the considerations specified in the legislative test applied by the 
Tribunal in the Part 10A process is, in a number of important respects, identical or 
similar to the modern awards objective which now appears in s.136.”29

 “[A]s a matter of policy and sound administration it has generally followed 
previous Full Bench decisions relating to the issue to be determined, in the 
absence of cogent reasons for not doing so” and that “[t]hese policy 
considerations tell strongly against the proposition that the Review constitutes a 
‘fresh assessment’ unencumbered by previous Tribunal authority.”30

 “In circumstances where a party seeks a variation to a modern award in the 
Review and the substance of the variation sought has already been dealt with by 
the Tribunal in the Part 10A process, the applicant will have to show that there are 
cogent reasons for departing from the previous Full Bench decision, such as a 
significant change in circumstances, which warrant a different outcome.” The Full 
Bench rejected “the proposition that the Review should proceed on the basis of a 
fresh assessment of modern awards unencumbered by previous Tribunal 
authority.”31

 “The fact that the transition to modern awards is still occurring militates against 
the adoption of broad changes to modern awards as part of the Review. Such 
changes are more appropriately dealt with in the 4 year review, after the transition 
process has completed.”32








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 “[T]he Review is intended to have a narrower scope than the 4 yearly reviews 
provided in the FW Act.”33

 “Part 10A of the WR Act and the award modernisation decisions of the AIRC are 
relevant insofar as they provide a historical context for the Review and because 
the Review must look at any anomalies or technical problems arising from that 
award modernisation process.”34

 “[A]s a general principle, variation determinations arising out of the Review 
should operate prospectively, unless there are exceptional circumstances which 
warrant a retrospective operative date.”35

[19] In relation to the scope of the 2012 Review, the Full Bench summarised its 
conclusions as follows:

“[99] To summarise, we reject the proposition that the Review involves a fresh 
assessment of modern awards unencumbered by previous Tribunal authority. It seems 
to us that the Review is intended to be narrower in scope than the 4 yearly reviews 
provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely 
to revisit issues considered as part of the Part 10A award modernisation process unless 
there are cogent reasons for doing so, such as a significant change in circumstances 
which warrants a different outcome. Having said that we do not propose to adopt a 
‘high threshold’ for the making of variation determinations in the Review, as proposed 
by the Australian Government and others.

[100] The adoption of expressions such as a ‘high threshold’ or ‘a heavy onus’ do not 
assist to illuminate the Review process. In the Review we must review each modern 
award in its own right and give consideration to the matters set out in subitem 6(2). In 
considering those matters we will deal with the submissions and evidence on their 
merits, subject to the constraints identified in paragraph [99] above.”36

[20] The modern awards objective, which is significant within the 2012 Review, is as 
follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWA must ensure that modern awards, together with the National 
Employment Standards, provide a fair and relevant minimum safety net of 
terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased 
workforce participation; and








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(d) the need to promote flexible modern work practices and the 
efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or 
comparable value; and

(f) the likely impact of any exercise of modern award powers on 
business, including on productivity, employment costs and the 
regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and 
sustainable modern award system for Australia that avoids 
unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on 
employment growth, inflation and the sustainability, 
performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of 
FWA’s modern award powers, which are:

(a) FWA’s functions or powers under this Part; and

(b) FWA’s functions or powers under Part 2-6, so far as they relate 
to modern award minimum wages.

Note: FWA must also take into account the objects of this Act and any other 
applicable provisions. For example, if FWA is setting, varying or revoking 
modern award minimum wages, the minimum wages objective also applies 
(see section 284).”

Variations proposed and not opposed

[21] There are six proposed variations which were not opposed and which can be made, 
subject to the Commission’s satisfaction that the variations should be made having regard to 
Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. They are dealt with 
immediately below:

1. The HIA application to vary clause 25.5—Travelling outside radial areas in relation 
to fares and excess travelling allowances (Note. Other elements of the HIA application in 
respect of clauses 25.2 to 25.8 are dealt with separately below)








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[22] In its initial application, the HIA sought a variation to clause 25.5–Travelling outside 
radial areas of the Building On-site Award, to provide clarity as to which radial area should be 
used for the purposes of calculating the excess entitlement under clause 25.5. It submitted that 
ambiguity exists as a result of the current terms of clause 25.5, which differs from the 
wording in the National Building and Construction Industry Award 200037 (NBCIA), and that 
amendment is necessary to simplify the clause so that the radial area for the purposes of this 
clause is clear.

[23] The HIA variation was discussed during the conference held on 6 December 2012, 
resulting in some level of agreement as to a variation to provide clarity within clause 25.5 and 
an intention of the parties to continue discussions on the drafting of an appropriate variation.38

[24] In correspondence of 12 December 2012, the HIA advised of an agreed proposed 
variation and its terms. On 13 December 2012, I issued directions affording interested parties 
the opportunity to make written submissions in relation to the amended variation by 
19 December 2012. On 18 December 2012, the CFMEU advised its consent to the proposed 
variation on behalf of itself, the AMWU, the AWU and the CEPU. No other submissions 
were received.

[25] On 4 January 2013, the HIA filed correspondence confirming the consent position 
recorded in its 12 December 2012 correspondence. However, on 10 January 2013, 
notwithstanding the absence of any submissions in relation to the directions of 13 December 
2012, other than that of the CFMEU on 18 December 2012, the HIA advised that it had been 
brought to its attention that not all interested parties could consent to the variation to clause 
25.5 in the form it proposed and that the parties would meet again in relation to it on 
17 January 2013. No subsequent information concerning the amended clause 25.5 proposed 
by the HIA was provided. As a result, a further notice of listing of 7 March 2013 provided an 
opportunity for any further and final positions to be put in relation to the amended clause 25.5 
proposed in the HIA correspondence of 12 December 2012.

[26] No further submissions were received. 

[27] The amended terms of clause 25.5 as proposed, with the agreement of other interested 
parties and without objection by any interested party are as follows:

“25.5 Travelling outside radial areas 

(a) Where an employer requires an employee to travel daily from inside 
one radial area mentioned in clauses 25.2, 25.3 and 25.4, to work on a 
construction site outside that area, the employee will be entitled to: 

(i) the allowance prescribed in clause 25.2 for each day worked; 
and 

(ii) in respect of travel from the designated boundary to the job and 
return to that boundary: 








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 the time outside ordinary working hours reasonably spent 
in such travel, calculated at ordinary hourly ‘on site’ rates 
to the next quarter of an hour with a minimum payment of 
one half an hour per day for each return journey; and 

 any expenses necessarily and reasonably incurred in such 
travel, which shall be $0.46 per kilometre where the 
employee uses their own vehicle.”

[28] I am satisfied that the variation to clause 25.5 now proposed provides clarity as to its 
operation and should be made to give effect to the modern awards objective in s.134(g), to 
address any practical confusion arising from the current terms. The variation does not 
materially alter the relevant terms and conditions. Clause 25.5 will be varied in the terms 
proposed, subject to minor modification to reflect the consequential amendment arising out of 
my decision in relation to reference rates below and consistent numbering:

25.5 Travelling outside radial areas 

Where an employer requires an employee to travel daily from inside one radial 
area mentioned in clauses 25.2, 25.3 and 25.4, to work on a construction site 
outside that area, the employee will be entitled to: 

(a) the allowance prescribed in clause 25.2 for each day worked; and 

(b) in respect of travel from the designated boundary to the job and return 
to that boundary: 

(i) the time outside ordinary working hours reasonably spent in 
such travel, which will be paid at the ordinary time hourly rate, 
and calculated to the next quarter of an hour with a minimum 
payment of one half an hour per day for each return journey; 
and 

(ii) any expenses necessarily and reasonably incurred in such travel, 
which shall be $0.46 per kilometre where the employee uses 
their own vehicle.

2. The HIA application to vary clause 37–Penalty rates–in relation to meal and rest 
breaks when working overtime

[29] The HIA application sought to vary clause 37–Penalty rates, to provide clarity as to 
the breaks to which an employee is entitled when working on a Saturday or Sunday and the 
interaction between clauses 35–Meal breaks and 37 of the Building On-site Award.

[30] During the course of the 6 December 2012 hearing, it was evident that there was no 
disagreement as to the intended operation of clauses 35 and 37 and some level of support for 
the variation to provide greater clarity. Following the conference, my 11 December 2012 
statement noted ongoing discussions and advised that if full agreement was reached, the HIA 








[2013] FWC 4576

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would file the proposed agreed clauses, and they would be posted on the Commission’s website, 
with interested parties being afforded the opportunity to make written submissions within a week 
of it being posted.39 The discussions between the HIA and the CFMEU ultimately led to an 
agreed position recorded in HIA correspondence of 3 January 2013. It was posted on the 
website. No further submissions were received in relation to the proposed agreed variation.

[31] I am satisfied that the proposed variation will provide greater clarity as to the taking of 
breaks during weekend work and the interaction between clauses 35 and 37 of the Building 
On-site Award. I am satisfied that the agreed variation will better achieve the objective of 
simple, easy to understand modern awards.

[32] Clause 37—Penalty rates of the Building On-site Award will be varied to replace the 
existing clauses 37.6, 37.7 and 37.8, incorporating the consequential amendment to clauses
37.7 and 37.8 arising out of my decision in relation to reference rates below, as follows:

37.6 An employee working overtime on Saturday or Sunday must be allowed a paid 
rest period of 10 minutes between 9.00 am and 11.00 am. This provision 
operates in place of clause 35.3(a). 

37.7 An employee working overtime on a Saturday or working on a Sunday must be 
allowed a paid crib time of 20 minutes after four hours work, to be paid for at 
the ordinary time hourly rate of pay but this provision will not prevent any 
arrangements being made for the taking of a 30 minute meal period, the time in 
addition to the paid 20 minutes being without pay. This provision operates in 
place of clause 35.1(a). 

37.8 In the event of an employee being required to work in excess of a further four 
hours, the employee must be allowed to take a paid crib time of 30 minutes 
which will be paid at the ordinary time hourly rate of pay. This provision 
operates in place of clauses 35.3(a) and (b).

3. Reference rate issue

[33] The MBA’s initial application sought variations directed to providing greater clarity in 
respect of reference rates throughout the Building On-site Award. It submitted that, whilst 
most allowances are defined under the Building On-site Award as a proportion of the 
“standard rate”, which is described at clause 3.1 as the minimum wages as expressed for 
CW/ECW 3 workers under clause 19.1, i.e. 19.1(a) base rates, the reference rates for a range 
of other entitlements under the Building On-site Award are less clear. It submitted that many 
loadings, redundancy payments, distant work entitlements etc., are often described as being 
payable at “ordinary time rates of pay”, “ordinary rates”, “time and a half” or “double time” 
etc., which are not defined under the Building On-site Award. The MBA submitted that this 
resulted in employers being often uncertain about which rates should be paid upon 
redundancy, or to which rates loadings should be applied, proposing that reference rates under 
the Building On-site Award be specifically defined, based both on the penalty reference rate 
definitions contained in the NBCIA and common law precedent on the meaning of “ordinary 
time rates of pay”.








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[34] As already noted in this decision, organisations appearing sought a further opportunity 
to progress the simplification of reference rates. They utilised that opportunity productively, 
resulting in a variation agreed between the CFMEU, the HIA, the MBA, the AWU, the 
AMWU and the CEPU which was conveyed to the Commission in a submission and 
correspondence of 6 March 2013, which was posted on the website. 

[35] The variations proposed are as follows:

Clause Variation proposed
3 By inserting the following new definitions in alphabetical order in clause 3:

Double time means the ordinary time hourly rate multiplied by 200%

Double time and a half means the ordinary time hourly rate multiplied by 
250%

Ordinary time hourly rate means:

 for daily hire employees the hourly rate calculated in accordance with 
clause 19.3(a);

 for weekly hire employees the hourly rates calculated in accordance 
with clause 19.3(b);

 for apprentices the weekly rate (determined in accordance with clause 
19.7 or 19.8) divided by 38;

 for trainees the weekly rate (determined in accordance with clause 
28.2 or 28.3) divided by 38;

 for employees covered by clause 42 – Lift industry, includes the all-
purpose amounts specified in clause 42;

 for forepersons and supervisors in the metal and engineering 
construction sector the relevant weekly rate specified in clause 43.2(a) 
divided by 38;

 for leading hands includes the amount calculated in accordance with 
clause 19.2(a) or (b)

Time and a half means the ordinary time hourly rate multiplied by 150%
13.2 By deleting clause 13.2 and inserting the following:

13.2 For each ordinary hour worked, a part-time employee will be paid no 
less than the ordinary time hourly rate for the relevant classification and 
pro rata entitlements for those hours. An employer must inform a part-
time employee of the ordinary hours of work and the starting and 
finishing times. 

15.3(a) By deleting clause 15.3(a) and inserting the following:

(a) When overtime and/or shiftwork are worked the relevant penalties 
and allowances prescribed by the award will apply, based on the 
applicable ordinary time hourly rate. No apprentice/trainee will work 
overtime or shiftwork on their own or without supervision. 








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17.3(c) By deleting clause 17.3(c) and inserting the following:

(c) Week’s pay means the ordinary time hourly rate at the time of 
termination multiplied by 38. Hours pay means the ordinary time 
hourly rate at the time of termination.

19.1(b) By deleting clause 19.1(b) and inserting the following:

(b) The rates in clause 19.1(a) prescribe minimum classification rates 
only. The payment of additional allowances is required by other 
clauses of this award in respect of both weekly and hourly payments. 
The ordinary time hourly rate for an employee’s classification is set 
out in clause 3.

19.4(a) By deleting clause 19.4(a) and inserting the following:

(a) A new employee, if engaged and presenting for work to commence 
employment and not being required, will be entitled to at least eight 
hours’ work or payment therefore at ordinary time hourly rates, plus 
the appropriate allowance prescribed by clause 25—Fares and travel 
patterns allowance.

21.7 By deleting clause 21.7 and inserting the following:

21.7 Carpenter-diver allowance 
Employees undertaking work normally performed by a carpenter-diver 
must be paid an additional 4.5% of the hourly standard rate per hour 
extra which will be regarded as part of the ordinary time hourly rate for all 
purposes of the award.

21.8(b) By deleting clause 21.8(b) and inserting the following:

(b) This allowance must be paid instead of all special rates prescribed in 
clause 22—Special rates, except clauses 22.2(b) and 22.2(c) and will 
be regarded as part of the ordinary time hourly rate.

22.2(m) By deleting clause 22.2(m) and inserting the following:

(m) Furnace work
An employee engaged in the construction of, or alteration or repairs 
to, boilers, flues, furnaces, retorts, kilns, ovens, ladels, and similar 
refractory work must be paid an additional 8.5% of the hourly 
standard rate per hour. This additional rate will be regarded as part of 
the ordinary time hourly rate for all purposes.

22.2(n) By deleting clause 22.2(n) and inserting the following:

(n) Acid work 
An employee required to work on the construction of or repairs to 
acid furnaces, acid stills, acid towers and all other acid resisting 
brickwork must be paid an additional 8.5% of the hourly standard rate 
per hour. This additional rate will be part of the ordinary time hourly 
rate for all purposes.








[2013] FWC 4576

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22.3(l) By deleting clause 22.3(l) and inserting the following:

(l) Brewery cylinders—painters 
(i) A painter in brewery cylinders or stout tuns must be allowed a 

15 minute spell in the fresh air at the end of each hour worked. 
Such 15 minutes will be counted as working time and will be 
paid for as such.

(ii) The rate for working in brewery cylinders or stout tuns will be 
at the rate of time and a half. When an employee is working 
overtime and is required to work in brewery cylinders and stout 
tuns the employee must, in addition to the overtime rates 
payable, be paid one half of the ordinary time hourly rates.

23.7 By deleting clause 23.7 and inserting the following:

23.7 Where an employee is not able to perform any work at any location 
because of inclement weather, the employee will receive payment at the 
ordinary time hourly rate for ordinary hours. Payment for time lost due 
to inclement weather is subject to a maximum of 32 hours pay in any 
four week period for each employee. Payment is subject to adherence to 
the terms of this clause.

24.7(a)(i) By deleting clause 24.7(a)(i) and inserting the following:

(i) An employee must:
 be provided with appropriate transport or be paid the amount of a fare 

on the most appropriate method of public transport to the job (bus, 
economy air, second class rail with sleeping berths if necessary), and 
any excess payment due to transporting tools if such is incurred; and

 be paid for the time spent in travelling, at ordinary time hourly rates 
up to a maximum of eight hours per day for each day of travel; and

 be paid $13.70 per meal for any meals incurred while travelling.
25.5 By deleting clause 25.5 and inserting the following:

25.5 Travelling outside radial areas
Where an employer requires an employee to travel daily from inside one 
radial area mentioned in clauses 25.2, 25.3 and 25.4, to work on a 
construction site outside that area, the employee will be entitled to:
(a) the allowance prescribed in clause 25.2 for each day worked; and
(b) in respect of travel from the designated boundary to the job and 

return to that boundary:
(i) the time outside ordinary working hours reasonably spent in 

such travel, which will be paid at the ordinary time hourly 
rate, and calculated to the next quarter of an hour with a 
minimum payment of one half an hour per day for each 
return journey; and

(ii) any expenses necessarily and reasonably incurred in such 
travel, which shall be $0.46 per kilometre where the 
employee uses their own vehicle.








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34.1(b) By deleting clause 34.1(b) and inserting the following:

(b) When an employee is employed continuously (inclusive of public 
holidays) for five shifts Monday to Friday, the following rates will 
apply:
(i) afternoon and night shift—ordinary time hourly rate plus 50%;
(ii) morning and early afternoon shifts—ordinary time hourly rate 

plus 25%.
34.1(d) By deleting clause 34.1(d) and inserting the following:

(d) In the case of broken shifts (i.e. less than 38 ordinary hours worked 
over five consecutive shifts Monday to Friday) the rates prescribed 
will be time and a half for the first two hours and double time 
thereafter.

34.1(i) By deleting clause 34.1(i) and inserting the following:

(i) All work in excess of shift hours, Monday to Friday, other than 
holidays must be paid for at double time (excluding shift rates).

34.2(j) By deleting clause 34.2(j) and inserting the following:

(j) Shift allowances
A shiftworker whilst on afternoon or night shift other than on a 
Saturday, Sunday or holiday must be paid their ordinary time hourly 
rate plus 15%.

34.2(n) By deleting clause 34.2(n) and inserting the following:

(n) Permanent night shift
An employee who (except at their own request pursuant to clause 
34.2(b)(i)):
(i) during a period of engagement on shift, works night shift only; 

or
(ii) remains on a night shift for a longer period than four successive 

weeks; or
(iii) works on a night shift which does not rotate or alternate with 

another shift or with day work so as to give the employee at 
least one third of their working time off night shift in each 
cycle;

must, during such engagement, period or cycle be paid their ordinary 
hourly rate plus 30% for all time worked during ordinary working 
hours on such night shift.

34.2(o) By deleting clause 34.2(o) and inserting the following:

(o) Call outs
A shiftworker called out to work after the expiration of their 
customary working time and after they have left work for the shift, or 
is called out to work on a day on which they are rostered off, must be 
paid for a minimum of three hours work calculated at double time for 
each occasion the shiftworker is called out. Provided that if called out 








[2013] FWC 4576

16

on a public holiday, payment must be calculated at the rate prescribed 
in clause 37.9 of this award.

36.5 By deleting clause 36.5 and inserting the following:

36.5 If an employer requires an employee to work during the time prescribed 
by clause 35.1 for finishing of work, the employee must be paid at the 
rate of double time for the period worked between the prescribed time 
of finishing and the beginning of the time allowed in substitution for the 
meal break. If the finishing time is shortened at the request of the 
employee to the minimum of 30 minutes prescribed in clause 35.1 or to 
any other extent (not being less than 30 minutes) the employer will not 
be required to pay more than the ordinary time hourly rate of pay for the 
time worked as a result of such shortening, but such time will form part 
of the ordinary working time of the day. 

37.7 By deleting clause 37.7 and inserting the following:

37.7 An employee working overtime on a Saturday or working on a Sunday 
must be allowed a paid crib time of 20 minutes after four hours work, to 
be paid for at the ordinary time hourly rate of pay but this provision will 
not prevent any arrangements being made for the taking of a 30 minute 
meal period, the time in addition to the paid 20 minutes being without 
pay. 

37.8 By deleting clause 37.8 and inserting the following:

37.8 In the event of an employee being required to work in excess of a 
further four hours, the employee must be allowed to take a paid crib 
time of 30 minutes which will be paid at the ordinary time hourly rate of 
pay.

[36] The CFMEU correspondence noted that consequential variations would or might be 
required in respect of clauses 14.5, 14.6, 14.7 and 19.3 but the consequential variations would 
depend on the determination of other variations proposed in respect of the substantive 
provisions in this decision. It also noted that consequential variation of clauses 19.7 and 19.8 
would depend on the outcome of the separate Full Bench dealing with apprentices.

[37] Finally, the CFMEU noted that the unions believe no change should be made to clause 
38.2(a) as it highlights that the base rate of pay referred to in the Fair Work Act 2009 (the 
Act) does not apply.

[38] The position reflected in the currently proposed variations, if accepted, disposes of 
numerous MBA claims: in respect of clauses 3.1, 17.3(c), 19.4(a), 22.3(l)(ii), 23.6, 23.7, 
24.7(a)(i), 34.1(b)(i) and (ii), 34.1(d), 34.1(i), 34.2(i)–(k), 34.2(m)–(o), 36.2, 36.5, 36.11, 
36.13, 37.1, 37.3, 37.5, 37.7, 37.8 and 37.9.

[39] In a statement of 7 March 2013,40 all parties with an interest in the Building On-site 
Award were afforded an opportunity to make submissions on the reference rate variations, as 
set out in the CFMEU correspondence and recorded above, through a conference/hearing 
listed on 21 March 2013.








[2013] FWC 4576

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[40] On 15 March 2013, correspondence from the Ai Group was posted on the website for 
the matter supporting the combined proposal, save for one matter. Specifically, it indicated 
that the word “time” has been missed in the last sentence in the proposed clause 34.2(n), as 
highlighted below: 

“(iii) works on a night shift which does not rotate or alternate with another shift or 
with day work so as to give the employee at least one third of their working time off 
night shift in each cycle; 
must, during such engagement, period or cycle be paid their ordinary time hourly rate 
plus 30% for all time worked during ordinary working hours on such night shift.”

[41] No other written submissions were received. In the hearing of 21 March 2013, no 
objection was taken to the amendment proposed by the Ai Group. In a statement of 22 March 
2013,41 a further opportunity was provided for submissions in respect of the Ai Group 
amendment. None were made.

[42] I am satisfied that the additional definitions and the consequential variations contained 
in the CFMEU correspondence of 6 March 2013, amended in respect of clause 34.2(n) as 
proposed by the Ai Group, provide clarity and consistency as to the calculation of various 
entitlements under the Building On-site Award by reference to the definitions proposed. As 
noted by the MBA, the definitions now proposed more closely correspond with the definitions 
within s.16 of the Act. I am satisfied that the variations proposed should be made to give 
effect to the modern awards objective in s.134(g), to address uncertainty arising from the 
current terms and does not materially alter the relevant terms and conditions. The Building 
On-site Award will be varied in the agreed terms proposed, subject to the Ai Group 
amendments to clause 34.2(n), unless otherwise varied in this decision.

[43] Any consequential variations which are in respect of clauses 14.5, 14.6, 14.7 and 19.3, 
having regard to my determination of other variations proposed in respect of the substantive 
provisions in this decision, may be sought by further written submissions by no later than 
15 August 2013. Any consequential variation of clauses 19.7 and 19.8, if necessary following 
the decision of the Apprentice, Trainees & Juniors Full Bench may be sought by further 
written submissions by no later than two weeks after the decision, if not already addressed in 
any determination made by that Full Bench.

4. MBA application to vary clause 19.5–Mobile cranes capacity adjustment formula

[44] The MBA application to vary clause 19.5 is directed to clarifying that the standard 
weekly rate is divisible by 38 hours per week and multiplied by actual hours worked for part-
time employees and retained as a cumulative allowance. 

[45] The MBA has not established an issue with the terms of clause 19.5, requiring a 
variation in light of error or technical problems or its operation in a manner which requires 
variation to meet the modern awards objective, including as a result of uncertainty. The 
adjustment formula is an addition to the weekly base rate for Level 5 (CW/ECW 5) and
above. The weekly rate, inclusive of the mobile cranes capacity adjustment formula, is 
calculated as an hourly rate in accordance with clause 13.2. The variation to clause 19.5 is 
refused.








[2013] FWC 4576

18

5. MBA variation to remove reference to definition of “new construction work on a 
multistorey building” in clause 3

[46] The MBA sought to remove the definition of “new construction work on a multistorey 
building” in clause 3—Definitions and interpretation of the Building On-site Award on the 
basis that it performs no function.42 The only other submission was put by the CFMEU, which 
supported the variation.43

[47] Other than in the definition in clause 3, the term “new construction work on a 
multistorey building” does not appear in the Building On-site Award. It serves no purpose, is 
inconsistent with a simple, easy to understand award. It will be deleted from clause 3.

6. MBA application to vary clause 28.1 to remove an erroneous reference to clause C.3.1

[48] Clause 28.1 states that “[t]he provisions of Schedule C will apply in respect of 
traineeships, save that the following minimum wage rates [in clauses 28.2 and 28.3] will 
apply instead of those within clause C.3.1 of Schedule C”. Clause C.3.1 (and clause C.3 as a 
whole) of Schedule C deals with its coverage. The relevant minimum rates are in fact found in 
clause C.5.1 of Schedule C. The MBA submitted reference to clause C.3.1 of Schedule C in 
clause 28.1 appears to be in error and should be to clause C.5.1.44 The CFMEU, although 
agreeing that there is an incorrect reference, proposed that any variation be dealt with by the 
2012 Review Apprentices, Trainees & Juniors Full Bench.45 No interested party opposed the 
variation.

[49] It is clear that the reference to clause C.3.1 is an error and should be a reference to 
clause C.5.1. The Building On-site Award will be varied to correct the error. Given the error 
is peculiar to the Building On-site Award, there is no reason to distract the 2012 Review 
Apprentices, Trainees & Juniors Full Bench from the major issues it is considering, in order 
to correct a referencing error of this type. The variation will be made to change the reference 
to clause C.5.1.

Other variations proposed

1. HIA application to vary clause 23.8–Inclement weather

[50] The HIA submitted that there is a lack of clarity as to when the “four week period” 
referenced in clause 23.8 is to commence and conclude. It submitted that whilst the NBCIA 
specified in clause 21.7.1 an initial date, from which subsequent four week periods are 
calculated, the Building On-site Award is silent on this issue, creating confusion.

[51] In its application the HIA sought to remove the uncertainty by inserting a new clause 
23.9, in similar terms to clause 21.7.1 of the NBCIA:

“23.9 The first four week period shall be deemed to have commenced on 11 January 
1999 and subsequent periods shall commence at four weekly periods thereafter.”








[2013] FWC 4576

19

[52] On reflection and after discussions with other parties, HIA proposed another, more 
appropriate time of 1 January 2010 to more closely align with the introduction of the modern 
award and, in addition, altered the variation sought to also enable the parties to the Building 
On-site Award to use an alternative industry calendar.46

[53] The MBA submitted that the current provisions of the inclement weather clause permit 
inclement weather calendars to continue to be applied and supported the HIA variation to the 
extent that it makes that position clear. 

[54] The CFMEU was not opposed to the intent of the HIA variation but suggested that it 
be a new clause 23.8(b) so that the renumbering of the rest of the clause is not needed, and 
that the date of 28 December 2009 be used as it is as close as possible to the start of the 
modern award whilst still being in line with the 2010 inclement weather calendar and its 
predecessor calendars. It opposed the start date of 1 January 2010, on the basis that it is 
inconsistent with current calendars, with 28 December 2009 being consistent with the existing 
calendar that applied prior to the Building On-site Award coming into operation. It submitted 
that the second element of the amended HIA variation is not needed.47

[55] In the hearing the HIA accepted the slightly earlier date proposed by the CFMEU48

and the inclusion of the date in a new clause 23.8(b),49 rather than as a new clause 23.9. 

[56] Both the MBA and CCIWA strongly contended that the provision should allow 
flexibility for the use of other calendars.50

[57] I accept that the absence of a starting date of the inclement weather calendar creates a 
technical problem, creating uncertainty as to the operation of clause 23.8 of the Building On-
site Award and that a variation is required to remedy that problem. Having regard to the 
agreed position between the CFMEU and the HIA, but the concerns of the MBA and CCIWA 
in relation to employers currently utilising alternate calendars, clause 23.8 will be varied to 
renumber clause 23.8 as 23.8(a) and to insert a new clause 23.8(b) in the following terms:

“The first period will be deemed to commence on the first Monday after 28 December 
2009 and subsequent periods will commence at four weekly periods thereafter, 
provided that a calendar that was being used immediately before 15 July 2013 may still 
apply.”

2. CCIWA application: for the inclusion of remote work provisions–clause 3.1 
(definitions of remote work and remote work cycles), vary clauses 25.10(a)(ii), 34, 35.3(c) 
(renumbered as 36.3(c)) and 36.2 (renumbered as 37.2)) to include “shift work” and “remote 
work”, and insert a new clause 35, prescribing terms and conditions applicable to remote 
work

Submissions

[58] CCIWA brought the application on the basis that the Building On-site Award does not 
meet the modern awards objective in s.134 of the Act, is not operating effectively, and 
operates with anomalies for construction work undertaken pursuant to cycle work 
arrangements in remote locations. It submitted that paragraph 33AA of the consolidated








[2013] FWC 4576

20

Award Modernisation Request, concerning work in remote locations, was not considered in 
the context of the Building On-site Award during the award modernisation process.

[59] CCIWA submitted that it is widely accepted that due to the regional and remote 
locations of resource projects, long distance commuting, such as fly in/fly out (FIFO), drive 
in/drive out, or bus in/bus out (together, Long Distance Commuting) is common and 
widespread in regional and remote location resource projects across Australia, but primarily in 
Western Australia and Queensland. It submitted that construction work is undertaken on and 
in relation to resource projects and is work which the Building On-site Award covers, often in 
regional and remote locations and is temporary in nature. It submitted that workers engaged to 
undertake construction work in remote locations are commonly engaged on Long Distance 
Commuting working arrangements.

[60] CCIWA submitted that the Building On-site Award in its current form contemplates 
that work will be undertaken in remote locations,51 but is restrictive in the way it addresses 
rostering and hours of work, is not sufficiently flexible to allow for Long Distance 
Commuting work arrangements, and does not reflect current working arrangements.

[61] CCIWA submitted that its proposed variation gives effect to roster arrangements, 
including hours, work rosters etc., presently operating and applicable to construction work 
being undertaken pursuant to cycle work arrangements in remote locations in the construction 
industry and gives effect to the modern awards objective to promote flexible modern work 
practices and the efficient and productive performance of work. It submitted that the variation, 
based on clauses in the Mining Industry Award 201052 (Mining Award) that address the 
circumstances applicable to remote “cycle work”, seeks the following:

“(a) inserting definitions for ‘remote works’ and ‘remote work cycle’ (proposed 
definitions in clause 3.1);

(b) in relation to the working of a remote work cycle:

(i) allowing for the averaging of ordinary hours over a remote work cycle 
involving working and non-working days (proposed clauses 35.2(b) 
and 35.3);

(ii) increasing ordinary hours from 8 to 10 (and 12 by agreement)
(proposed clauses 35.2(c), 35.2(d) and 35.2(e));

(iii) changing the spread of hours from 7.00 am to 6.00 pm Monday to 
Friday, to 6.00 am to 6.00 pm Monday to Friday (or otherwise by 
agreement) (clauses 35.2(c) and 35.2(e));

(iv) maximum weekly hours to be averaged over a period of 26 weeks 
(proposed clause 35.4);

(v) allowing rostered days off to be rostered in accordance with an 
employee’s roster cycle (ie during any off-duty period) (proposed 
clause 35.5); and 








[2013] FWC 4576

21

(vi) allowing rosters to be varied with 48 hours notice, or at any time in the 
event of an emergency (proposed clauses 35.6 and 35.7); and

(c) clarifying that clause 34.2(b)(ii) of the Construction Award does not apply to 
remote cycle work or remote work (clause 34.2(b)(ii) prevents shiftworkers in 
the civil construction sector working more than eight shifts in any nine 
consecutive days) (proposed clause 35.2(f)).”53

[62] The full variations sought by CCIWA, including the substantive proposed remote 
work provision in clause 35, are appended to this decision as Attachment A.

[63] The CCIWA application was supported by the Ai Group, ABI, the HIA and the MBA. 
The MBA cited ABS data that 345,000 of a total of 352,000 firms in the construction industry 
were non-employing companies or employed less than 20 employees54 which, it submitted, 
supported the difficulty of entering into enterprise agreements to work on remote work 
projects.

[64] The CFMEU opposed the CCIWA application, submitting that: 

“ the variation to the Award Modernisation Request regarding remote work is not 
relevant to the Review;

 there has been no significant change in circumstances . . .;

 the award as it currently stands meets the modern award [sic] objective . . .;

 the anomaly that the CCIWA complain of is not an anomaly contemplated by item 
6.2 of Schedule 5 of the Transitional Provisions Act;

 the variations proposed are unnecessary and a reduction of the safety net; and

 that the variations proposed are contrary to the objectives of the FW Act, 
particularly s.3(f), and the modern award [sic] objective contained in s.134(1) of 
the FW Act . . .”55

[65] The CFMEU submitted that the consolidated Award Modernisation Request is not 
relevant to the 2012 Review process, given Item 14(4) of Schedule 5 of the Transitional 
Provisions Act, a proposition, it submitted, that is supported by the 29 June 2012 Penalty 
Rates Full Bench preliminary decision.56 Similarly, it submitted, the Mining Award 
provisions based on the consolidated Award Modernisation Request are not relevant.

[66] The CFMEU submitted that construction industry pre-modern awards have 
recognised and provided appropriate terms and conditions for remote work since the early 
1990s, recognising FIFO arrangements since 1976. It submitted that up until 1989, the 
NBCIA was a paid rates award, with project appendices for specific remote work projects, 
with enterprise agreements governing such projects from 1993. It submitted that the majority 
of enterprise agreements contain hours of work provisions that reflect eight ordinary hours per 








[2013] FWC 4576

22

day, Monday to Friday, inclusive of time worked for rostered day off (RDO) accruals with 
overtime applying for the other hours worked.

[67] The CFMEU submitted that the pattern of work claimed by CCIWA to be reflective of 
remote project work is in fact common across the broader construction industry: the working 
of 10 hour days Monday to Friday and working on Saturdays or Sundays is common across 
the overwhelming majority of major construction projects, irrespective of location. Working 
seven days a week and large numbers of overtime hours are a common feature of construction 
projects, especially as the deadline for completion of a project approaches.57 The CFMEU 
submitted that it is common across the construction industry, including on remote projects, 
where 10 hours per day are worked Monday to Friday for the first eight hours to be paid at 
ordinary rates and the remainder paid at penalty rates, with any time worked on a Saturday or 
Sunday is paid at overtime rates. It submitted that the majority of the agreement extracts 
attached to the statement of Mr D Lee, General Manager Construction Services Chamber of 
Commerce and Industry of Western Australia (Inc), supported this contention with only three
of the 21 respondents to the Deloitte survey attached to Mr Lee’s statement averaging the 
maximum ordinary hours of 36.

[68] The CFMEU submitted that the variation sought would diminish the award safety net 
by enabling employers to require their employees to work 47 and a half ordinary hours per 
week Monday to Friday, clearly reducing the safety net of the modern award, which currently 
provides for a maximum of 38 ordinary hours per week at ordinary time rates.

[69] The CFMEU submitted that the issue of ordinary time hours was a contested issue in 
respect of the Building On-site Award in the award modernisation process, with several 
employer organisations seeking more flexible provisions at that time. The CCIWA in a 
31 October 2008 submission called for the averaging of the 38 hour week over an extended 
period, saying it was necessary for work carried out on a FIFO basis. The current provisions 
were determined having regard to those proposals and the terms of existing industrial 
instruments at the time.

[70] The CFMEU submitted that the variation is unnecessary in light of flexibility to 
provide for distant work within the Building On-site Award—clauses 7, 24.7, 25.3, 33.1, 35, 
36, 38 and 41.2.

[71] The CFMEU submitted that from an employee’s perspective the proposed variation 
would be unfair to employees as it will reduce their safety net by:

“ Increasing the number of ordinary hours an employee can be required to work 
each day to 10 hours

 Permit employers to dictate the roster arrangements without any consultation or 
agreement with their employees or the employee’s representatives

 Removes an employee’s right to be consulted over an increase in the spread of 
hours during which ordinary hours can be worked








[2013] FWC 4576

23

 Removes the right of an employee, working shifts on civil construction projects, 
to a break after working 8 consecutive shifts

 Permits employers to require employees to work more than 38 ordinary hours in a 
week (eg on a 4 in 1 roster the averaging system would mean working 47.5 
ordinary hours in each of the 4 weeks on the work site)

 Removes the employees right to be paid weekly and allows employers to dictate 
that employees are paid monthly

 Allows employers to dictate when rostered days off are taken

 Removing the obligation of the employer to seek employees agreement to alter 
start and finishing times”.58

[72] The CFMEU submitted that the CCIWA variation does not reflect industry 
arrangements for remote work—rest and recreational (R & R) arrangements, travel to and 
from site and additional payments. It submitted that it is inappropriate to take one part or a 
clause of an agreement in isolation and that the provisions of the whole agreement are 
relevant to determine the ordinary hours of work that apply under the agreement. It submitted 
that agreements relied on by CCIWA demonstrate that in the overwhelming majority of cases 
the ordinary hours of work each day are eight hours, and up to 40 ordinary hours per week 
(inclusive of RDO accruals) and that where an agreement contains a roster cycle which 
includes a period of R & R, such time off is made up of paid and unpaid R & R leave, project 
leave, accrued RDOs, paid annual leave and unpaid annual leave.

[73] The AMWU supported the CFMEU submission in relation to current practice reflected 
in enterprise agreements, submitting that they provide for additional remote provisions 
including:

 payment for travel;
 provisional accommodation; 
 compensation for accommodation, if not provided;
 income protection;
 travel arrangements for demobilisation;
 R & R;
 payment for travel time; and 
 additional payments, such as special allowances and project incentive payments.

[74] More generally, the AMWU submitted that remote rosters should remain the preserve 
of industrial agreements, principally because agreements are better able to take into account 
the conditions of the enterprises and projects they are designed to cover and would have been 
the subject of give and take in the bargaining process, where other provisions dealing with 
entitlements and responsibilities would have also been argued over as compensation for the 
demands required of workers performing under remote work rosters. It further submitted that 
if a specific remote clause is to be inserted into the Building On-site Award it should not be 
confined to those clauses that CCIWA are seeking to have inserted; rather they should be 








[2013] FWC 4576

24

accompanied by additional clauses which are also representative of the working conditions 
which are presently operating in practice in connection with remote work.

[75] The AWU also opposed the variation on three bases:

 CCIWA has misconstrued the purpose of the amendment to the Award 
Modernisation Request in paragraph 33AA, seeking to make a fresh assessment of
possible hours of work and working arrangements. The AWU submitted that 
paragraph 33AA of the consolidated Award Modernisation Request was intended 
to provide a transition from established remote work arrangements at the time to 
the modern award and was not intended to capture short-term project work and 
certainly not to lock in arrangements in terms of hours of work and rostering for 
all future short-term projects. The AWU submitted that only two of the 
agreements relied on by the CCIWA were in place at the time of the award 
modernisation process in respect of the Building On-site Award.

 The application seeks to import the hours of work and rostering arrangements 
from the Mining Award by reference to paragraph 33AA of the consolidated 
Award Modernisation Request, when only one element in the proposed CCIWA 
variation was determined by the Award Modernisation Full Bench having regard 
to the amendment to the Award Modernisation Request, with the remainder being 
included in the Mining Award by reference to the then existing industrial 
instruments and the industry circumstances of the mining industry. Clauses 
17.2(a) and (b) and 17.3(a) and (b) of the Mining Award were in the previous 
awards operating in the mining industry and were not changed. The only 
provision that was amended by the Award Modernisation Full Bench having 
regard to this requirement was to include a term that permits rostering 
arrangement and working hours presently operating in practice in those locations 
to continue after the making of the modern award. Otherwise, the only changes 
made between the exposure draft and the modern award made as the Mining 
Award was to provide for 10 ordinary hours rather than 12 as a general provision 
and the authority to average hours being increased from 12 to 26 weeks, with each 
provision having regard to the terms of pre-existing instruments.

 The proposed variation is not based on the evidence about how hours of work and 
rostering arrangements exist in practice by reference to remote work in the 
industry. The AWU relied on the evidence of Mr P Asplin, Assistant Branch 
Secretary of the AWU in Western Australia, that, in relation to remote work in 
Western Australia, the preference of the CCIWA is to negotiate pattern 
agreements and it is relatively easy to negotiate enterprise agreements in 
construction industries in relation to remote projects given the standard terms and 
conditions that apply. His evidence was also that in his experience the hours of 
work and rostering on construction projects, whether remote or otherwise, tend to 
be arranged so that eight ordinary hours are worked Monday to Friday and the 
overtime is worked in addition to that either at the end of the eight hour day 
and/or on Saturdays and Sundays, with ordinary hours of work of 36 ordinary 
hours per week in remote construction projects and employees generally working 








[2013] FWC 4576

25

a 10 hour day that that is made up of a component of eight ordinary hours and 
then overtime.

[76] The CEPU also opposed the CCIWA application, submitting that the provisions 
sought were inconsistent with current practice, even the evidence of Mr Lee,59 which 
establishes, for example, that 10 hours worked on Monday to Friday are worked on the basis 
of eight hours at ordinary time (7.2 plus 0.8 RDO accrual) and two hours at overtime rates.

Evidence

[77] The evidence brought in relation to the CCIWA application focussed on roster
arrangements and working hours presently operating in practice for remote work covered by 
the Building On-site Award. That evidence came in the form of:

 A statement by Mr D Lee,60 based on his experience providing industrial relations 
services to numerous major projects;

 A report by Deloitte Access Economics commissioned by CCIWA - Rostering 
arrangements for remote construction projects in Australia,61 21 September 2012, 
which reports the results of a survey undertaken by a “series of one hour 
telephone interviews with a sample of 21 Australian construction companies”. 
Whilst the authors acknowledge that the “sample may not be fully representative 
of the remote construction industry as a whole”,62 it is said to be indicative of 
remote work arrangements in respect of the construction industry of the 
companies surveyed.

 Evidence brought by the unions from experienced officers representing the 
interests of the unions’ members in resource sector project work:

 A statement of Mr F O’Grady, Assistant National Secretary for the CFMEU 
(Construction and General Division).

 A statement of Mr G Pallot, Assistant Secretary of the Western Australian 
Branch of the CFMEU.

 A statement of Mr J Ingham, Acting Assistant Secretary of the CFMEU, 
Construction and General Division, Queensland Construction Workers 
Divisional Branch.

 A statement of Mr L McLaughlan, State Secretary, of the CEPU WA 
Branch.

 A statement Mr P Asplin, Assistant Branch Secretary of the AWU in 
Western Australia. 

 The terms of enterprise agreements operating in respect of construction activity on 
remote work resource projects.








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26

[78] None of the witnesses were required for cross-examination.

[79] The unchallenged evidence of Mr Lee is that a significant amount of construction 
work is undertaken in regional and remote areas of Australia through the growth of the 
resources industry which requires the construction of large engineering projects and civil 
works. Such construction activity is undertaken at the earlier part of such projects and is of 
limited duration (less than two years in a significant majority of cases63). It is estimated by the 
Chamber of Mineral and Energy of WA that in the construction phase of resource projects up 
to 2015, 92% of that workforce will be FIFO.64

[80] Mr Lee’s evidence was that compaction of hours is a common element in the 
establishment of many FIFO work practices as it enables the efficient utilisation of human 
resources whilst on site but also ensures that the employee has the opportunity to have time 
away from the site.

[81] Mr Lee’s evidence was that some employers have established enterprise agreements to 
enable them to gain the flexibilities required for FIFO operations. Elaboration was provided in 
the evidence of union officers that, in respect of projects in which CCIWA was involved, this 
generally involved the negotiation of a greenfields agreement between the principal or the key 
contractors and relevant unions, which are then applied through agreements with other 
contractors in the same terms.65 The practice of a “head” agreement, the terms and conditions 
of which are applied in agreements with other contractors in order to secure common terms 
and conditions across a project, is familiar to me from my responsibilities for agreement 
approval. This approach is reflected in relation to the INPEX Project in Northern Australia. 
The MJHJV (John Holland) Ichthys Onshore Construction Greenfields Agreement66 was 
approved on 23 February 2012,67 with the Commission’s Agreements web page identifying 
multiple additional greenfields agreements, within the coverage of the Building On-site 
Award (and other related awards), providing the same terms and conditions.

[82] Mr Lee’s evidence, from his statement, was that many of the agreements have 
common elements:

 A requirement that employees work a cycle which is made up of time on-site and 
time away from site including, for example, four weeks on, one week off; three 
weeks on, one week off; 21 days on 10 days off.

 Flexibility in averaging ordinary hours over a defined work cycle (which can be 
greater than four weeks) that allows for 10 ordinary hours per day and in some 
cases 12 ordinary hours per day.

 Flexibility in averaging ordinary hours that does not require the accrual of a RDO.

 Ordinary hours—Monday to Friday can be worked between the spread of 6.00 am 
to 6.00 pm and this spread may be altered by agreement.

[83] The evidence as to agreements providing for work cycles, of various durations 
including a four weeks on one week off roster, which is made up of time on-site and time 
away from site is supported by the evidence of the unions’ witnesses. However, their evidence 








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disputes the proposition that flexibility in averaging ordinary hours over a work cycle allows 
for 10 ordinary hours per day and in some cases 12 ordinary hours per day, to the extent that it 
implies payment of the 10 or 12 hours at ordinary time rates of pay. In this respect:

 The evidence of Mr Asplin is that generally, “on many Western Australian 
projects, remote or otherwise, it is common for employees to work a ten (10) hour 
day. These ten (10) hours are not ordinary time hours. The 10 hours will be made 
up of eight (8) ordinary hours and then overtime hours”.68

 The evidence of Mr O’Grady was that the “normal working pattern for remote 
construction projects is for 10 hour days Monday to Friday and at least 8 hours on 
Saturday”, patterns which also apply to non-remote major projects.69 His evidence 
was that “[w]hilst the 36 hour week is the standard working hours in the majority 
of enterprise agreements in the building and construction industry . . . payment of 
the working hours reflects [the Building On-site Award provisions] where 10 hour 
days are worked Monday to Friday the first 8 hours are paid at ordinary time (with 
0.4 or 0.8 of an hour per day accruing towards the RDO depending on whether it 
is a 38 or 36 hour week) and two hours at overtime rates, [with] [a]ll time worked 
on Saturday or Sunday is paid for at weekend penalty rates”.70

 The evidence of Mr Pallot was that “all of the agreements applying to 
construction projects in the resource sector have ordinary hours of 36 per week 
with the ordinary hours to be worked between 6:00am and 6:00pm Monday to 
Friday”.71

[84] Mr O’Grady’s evidence was that “the averaging of hours over a roster cycle of paid 
and un-paid days is not and never has been a practice adopted in the building and construction 
industry”.72

[85] Mr Ingham was “not aware of any major project that utilises averaging of hours” and 
has “never had an employer request to utilise averaging of hours when negotiating a 
greenfields agreement for a regional project”.73

[86] The Deloitte report found:

 “All companies interviewed for the survey used cycle or swing arrangements on at 
least some of their remote construction projects”, in 90% of cases on all of their 
remote construction projects and in the remaining 10% on some projects;74

 In nearly all cases, R & R periods were unpaid;75

 In 89% of cases, “[m]aximum weekly ordinary hours on remote construction 
projects currently being undertaken by companies interviewed were” 36;76

 Only “[t]hree of the 21 companies that participated in the survey used averaging 
of maximum ordinary hours to spread their ordinary hours over specific time 
periods”;77








[2013] FWC 4576

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 85% of respondents did not average maximum weekly ordinary working hours 
over a certain period under the roster(s) used on remote construction projects they 
engaged on78 because “[a]veraging is not in line with current Agreement” (31%); 
the employer did not think that workers would agree to it (19%); it is not 
recommended by CCIWA (25%); averaging is not standard practice (19%); or the 
respondents did not see the need for averaging (6%);79

 “The maximum number of weekly (regular scheduled) overtime hours and the 
maximum total number of working hours tended to differ between different 
arrangements and projects. The majority of companies interviewed (81 per cent) 
reported maximum total weekly hours of between 60 and 70 hours on remote 
construction projects”;80

 “The majority of companies work to a 10 hour day on remote construction 
projects”, with the most common span being 6.00 am to 6.00 pm;81

 “Every company that participated in the survey spread their ordinary hours from 
Monday to Friday”;82 and

 “Of all the companies interviewed, 75 per cent provided special allowances 
applicable only to non-local employees on remote construction projects.”83

[87] Considerable debate as to whether the content of a number of major remote project 
agreements relied on by CCIWA in its application provided evidence of a practice for remote 
project work consistent with the CCIWA’s proposed variation and, in particular, the 
averaging of ordinary hours over total cycles consisting of on shift and off shift R & R 
periods. Whilst CCIWA submitted that there are a range of roster arrangements in practice, 
there was some focus on a four week on/one week off roster arrangement. A central related 
issue was whether agreements reflected a departure from the Building On-site Award 
requirement for payment of overtime for Monday to Friday in excess of eight hours (inclusive 
of RDO accumulation) on any day.

[88] This debate occurred in the context of a central purpose, and effect, of the CCIWA 
variation: to increase the ordinary hours per day to 10 (Monday to Friday) during the on-duty 
period (e.g. four weeks on-site) to provide for average ordinary hours over the total of the 
cycle (e.g. five weeks: four weeks on, one week off) in order to facilitate the fifth week off, 
achieved by averaging the ordinary weekly hours over the five week period.

[89] In its submissions the CFMEU contended that the majority of the agreements relied on 
by the CCIWA do not provide for averaging of hours.84 CCIWA in a supplementary 
submission of 28 November 2012 (uploaded on 29 November 2012) conceded that the 
summary of hours clauses in the Building On-site Award in Appendix One of Schedule C of 
its application overstates the position in paragraph 23 of the statement of Mr Lee and 
referenced agreements, appended to the supplementary submission as Annexure 1—Clauses 
in Enterprise Agreements Dealing with Hours of Work and Rostered Days Off. The CFMEU 
in a submission in reply of 5 December 2012, submitted that the analysis contained in 
Annexure 1 of the CCIWA supplementary submission “is flawed and not a true reflection of 
the agreements”, presenting clauses in isolation. It set out its own (fuller) assessment of the 








[2013] FWC 4576

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content of agreements in Appendices 1 and 2 to its submission in reply. The CFMEU 
submitted that the extracts from the agreements therein clearly demonstrated that in the 
overwhelming majority of cases the ordinary hours of work each day are eight hours, and up 
to 40 ordinary hours per week (inclusive of RDO accruals) and “[n]one of the agreements that 
would otherwise be covered by the [Building On-site Award] specifically allow for 10, 11 or 
12 ordinary hours per day”. It submitted that “the CCIWA has confused ordinary hours with 
working hours”. 

[90] A second supplementary submission by CCIWA of 6 December 2012 essentially 
asserts in respect of each agreement that the CCIWA summary in its supplementary 
submission of 29 November 2012 was accurate.

[91] In assessing the content and effect of the various agreements, CCIWA submitted that 
the majority of the enterprise agreements, both in Appendix One to Schedule C of its 
application and in Annexure 2 to Mr Lee’s witness statement, provide for:

“(a) a clause (usually titled ‘hours of work’) prescribing the maximum weekly 
hours (usually 36 or 38), averaged over a defined work cycle; and

(b) another clause (usually titled ‘rostered days off’) prescribing eight ordinary 
hours per day, being paid seven and one-fifth (7.2) ordinary hours pay and 
accruing four-fifths (0.8) of an hour towards an RDO.”85

[92] CCIWA submitted, however, that some of the agreements “allow up to 10, 11 or 12 
ordinary hours per day”, with a “small number operating on an eight hour basis”.86

[93] The enterprise agreements relied on by CCIWA do provide for ordinary hours of work 
(generally 36) averaged over a (variously) defined (although in some cases they are not 
defined) work cycle, generally to be worked Monday to Friday. However, an assessment of 
the agreements’ content does not support the general proposition that current industrial 
arrangements for remote construction work provide for averaging of ordinary hours over the 
on shift and off shift periods within rosters and provide for payment for hours beyond eight 
ordinary hours per day at ordinary time rates. 

[94] Some agreements do not specifically address the basis of payment for the additional 
hours (beyond eight inclusive of RDO accrual) each day. However, some agreements, which 
are otherwise similarly constructed to those agreements which do not directly address the 
issue, provide examples of rosters which specifically provide that where 10 hours are worked 
each day Monday to Friday, 7.2 are as ordinary hours, 0.8 as RDO accrual and two hours as 
overtime and all weekend hours paid as overtime.87

[95] Further, in the context of the central purpose of the CCIWA variation to facilitate the 
taking of the off-swing period through the averaging of ordinary hours over the total off-
swing and on-swing period, the agreements commonly include specific provision for the basis 
of payment for the off-swing period (R & R), which would be unnecessary if the off-swing 
period is accommodated by the averaging of hours.

[96] Specifically:








[2013] FWC 4576

30

 most agreements provide for a period of R & R, where such time off is made up of 
paid and unpaid R & R leave, project leave, accrued RDOs, paid annual leave and 
unpaid annual leave;88 and

 in many cases the accrual of annual leave recognises periods of unpaid leave 
during an R & R period as part of the continuous service.89

[97] Other agreements provide for variation of the application of an average of a 36 hour 
ordinary working week from “[e]mployee to Employee or section or sections of Employees, 
from time to time to suit programming requirements of the Project”, but the application of 
averaging is subject to no more than eight hours ordinary time being worked per day.90

[98] Other agreements specifically provide that R & R is classified as non-work time unless 
accrued RDOs are paid out which is inconsistent with the CCIWA contention that the 
agreements average hours over the on shift and off shift period and additional ordinary hours 
are worked during on shift periods to accommodate off shift R & R.91

[99] The Central Systems Pty Ltd Employee Collective Agreement 2009-201492 is a general 
construction agreement, providing simply for ordinary hours of eight per day. It includes 
special provisions in Annexure A for remote work. There is no provision for the averaging of 
ordinary hours within Annexure A.

[100] An examination of the agreements generally, having regard to their fuller content, does 
not support a conclusion that it is the usual practice that ordinary hours are averaged over the 
total on shift and off shift period or that Monday to Friday hours in excess of eight (inclusive 
of RDO accrual) are paid at ordinary time rates. This is consistent with the evidence of the 
union witnesses recorded above and the finding of the Deloitte report that 85% of respondents 
did not average maximum weekly ordinary working hours over a certain period under the 
rosters used on remote construction projects they were engaged on.93

Conclusion

[101] Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act requires 
consideration of whether the modern awards:

“(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from 
the Part 10A award modernisation process.”

[102] The CCIWA submitted that the variation proposed should be made on either basis—it 
provides fair and relevant minimum standards in the context of the modern awards objective 
and there is an anomaly or technical problem arising from the prior award modernisation 
process.94 CCIWA submitted that it needed only one of the two avenues to substantiate its 
application and accepted that even if there was an anomaly or technical problem, it would 
need to substantiate the merit of its proposed variation against the modern awards objective.








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[103] The application is brought in the following context:

 On 3 April 2009, the Award Modernisation Full Bench published its decision95

concerning Stage 2 modern awards, including the Building On-site Award. 

 On 2 May 2009 the then Workplace Relations Minister issued a variation to the 
Award Modernisation Request, introducing a new paragraph 33AA:

“Where a modern award covers work performed in remote locations, the 
Commission should include terms that permit the roster arrangements and 
working hours presently operating in practice in those locations to continue 
after the making of the modern award.”

 The Award Modernisation Full Bench decisions of 22 May 200996 and 26 June 
200997 considered the 2 May 2009 variation to the Award Modernisation Request. 
In its statement of 26 June 2009 re variations to modern awards, the Full Bench 
noted the process to be applied in dealing with any implications of the new 
paragraph 33AA on Priority and Stage 2 awards:

“Another more general issue arises in connection with the recent variation 
[2 May 2009] to the consolidated request. It is likely that the variation will 
have some significance in relation to modern awards made in the priority stage 
and in Stage 2. We do not intend, however, to initiate a review of those awards 
as that course would lead to considerable delay in completing modernisation. A 
party covered by a modern award who wishes to challenge terms in that award 
based on the variation to the consolidated request should make an appropriate 
application.”98

 Sometime later, on 20 August 2009,99 CCIWA wrote to the then President of the 
Australian Industrial Relations Commission (AIRC). It requested that the AIRC 
schedule an “additional hearing for all modern awards to take into consideration
the subsequent amendments to the award modernisation request along with the 
amendments to the requirements to be considered by the Commission in 
continuing and completing the Award Modernisation process” established as a 
result of the Transitional Provisions Act and identified the industries/occupations
most affected by remote work arrangements as the mining, construction, 
maintenance, security, industrial catering, cleaning, materials testing, clerical 
employees and professional occupations (e.g. engineers and geologists).100

 The CCIWA letter of 20 August 2009 was treated as a submission and placed on 
all industry sections of the Priority award and Stage 2 and Stage 3 web pages. 

[104] To complete the history, paragraph 33AA of the consolidated Award Modernisation
Request was specifically addressed by the Award Modernisation Full Bench in three 
subsequent decisions/statements:

 Making of the Hydrocarbons Industry (Upstream) Award 2010 [MA000062];101








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 Making of the Salt Industry Award 2010 [MA000107];102 and

 Variation to the Mining Award.103

[105] In that context, it cannot be said that the CCIWA variation reflects and responds to an 
anomaly or technical problem arising from the Part 10A award modernisation process. The 
process was clear and properly communicated to all interested parties. Any anomaly, 
technical problem or problem arises not from the Part 10A award modernisation process but 
by the failure of CCIWA to avail itself of the process clearly set out by the Award 
Modernisation Full Bench104 to challenge the terms in modern awards made in the Priority 
stage and in Stage 2 awards, based on the variation to the consolidated Award Modernisation 
Request to make an appropriate application.

[106] The other basis of anomaly argued by the CCIWA was that it was anomalous that the 
Building On-site Award did not contain remote work provisions, when other awards—in the 
manufacturing, hospitality, aluminum, maritime, offshore oil and gas and mining industries105

—did. This does not constitute an anomaly in circumstances where each modern award was 
made having regard to particular submissions advanced, and award terms proposed, having 
regard to the consolidated Award Modernisation Request and the content of pre-modern 
instruments. Further, given the 20 August 2009 letter of CCIWA to the AIRC, that the remote 
work issues arose in respect of the—maintenance, security, industrial catering, cleaning, 
materials testing, clerical and professional occupations—industries and occupations106—the 
anomaly would be widespread. FIFO work also occurs in respect of the Mobile Crane Hiring 
Award 2010,107 the Electrical, Electronic and Communications Contracting Award 2010108

and the Plumbing and Fire Sprinklers Award 2010.109

[107] For the CCIWA to succeed in its application it is necessary that it makes a case that 
the variation is justified on the basis of consideration of whether the Building On-site Award 
achieves the modern awards objective, having regard to the approach to be taken in the 2012 
Review set out by the 29 June 2012 decision of the Award Modernisation Full Bench110

which considered that preliminary question.

[108] I turn to consider the CCIWA application against the modern awards objective.

[109] The Building On-site Award was made having regard to the terms of prior 
instruments, including the NBCIA. The fact and specific regulation of remote work has been 
recognised and accommodated within pre-existing instruments for many decades. There has 
been no material change in circumstances as to the fact and regulation of remote construction 
work since the making of the Building On-site Award. The Building On-site Award was made 
having regard to those provisions and is taken to meet the modern awards objective unless 
other cogent reasons to the contrary can be established.

[110] There is no doubt that there is a significant amount of remote work, principally on 
resource projects, undertaken under the Building On-site Award and that such work is 
generally undertaken utilising FIFO arrangements. In some relevant respects characteristics of 
remote construction work are little different from those of many major non-remote 
construction sites—for example the working of extended hours Monday to Friday and 
Saturday work, involving significant levels of overtime. Other aspects of remote construction 








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work—for example rosters involving on shift and off shift periods, including the common “4 
on/1 off” roster—are more specific to remote projects.

[111] There is no material evidence that the current terms of the Building On-site Award are 
impeding the meeting of the modern awards objective in relation to remote work or impeding 
remote projects. Australia has seen unprecedented resource investment and construction 
activity in remote locations in recent years, in the context of the operation of the Building On-
site Award and the previously operating awards on which it was based. Current work 
arrangements, which the CCIWA application is directed to, have been implemented largely 
through enterprise agreements. 

[112] CCIWA submitted that it is impractical and unreasonable to require an employer, a 
small employer in particular, to reach an enterprise agreement to facilitate cycle work before 
it can tender for work. The evidence and my own experience in agreement approval is that 
major projects, remote and otherwise, are subject to a lead greenfields agreement between the 
principal employer and relevant unions, with contractor agreements being made and approved 
with identical terms and conditions to provide common industrial regulation. As the AMWU 
submitted,111 there is no evidence to support the contested proposition that, “Many employers 
in the construction industry are small and award reliant with limited ability and knowledge to 
develop enterprise agreements to overcome the restrictions within the Construction 
Award.”112 Nor, relevantly, is there evidence of instances of such employers seeking and 
being prevented from participating in remote projects in practice.

[113] The consolidated Award Modernisation Request is not directly relevant to the 
legislative framework governing the 2012 Review, although the award modernisation 
decisions of the AIRC are relevant insofar as they provide a historical context for the 2012 
Review and the 2012 Review must look at any anomalies or technical problems arising from 
that award modernisation process.113

[114] To the extent that the CCIWA application relies on paragraph 33AA of the 
consolidated Award Modernisation Request, the evidence as to “current practice” does not 
support the CCIWA variation. The variation, in the form proposed, involves an averaging of
ordinary hours across on shift and off shift periods and the avoidance of overtime payments in 
respect of Monday to Friday daily hours in excess of eight hours per day, which is not evident
in practice on the evidence (considered above).

[115] The central issue in the CCIWA application is the accommodation of off-swing 
periods through the averaging of hours across the total on-swing and off-swing period within 
a roster. Save for the off-swing arrangement, the compaction of hours and total working hours 
significantly in excess of ordinary hours is not limited to remote work—it is a common 
characteristic of major project work, whether remote or otherwise. The variation sought by 
CCIWA extends well beyond the issue of accommodating the off shift within roster 
arrangements, resulting in a reduction in payment in respect of Monday to Friday hours114 and
a diminution of the safety net reflected in the current terms of the Building On-site Award. 
The diminution of the safety net, by reducing overtime payments otherwise payable for daily 
hours beyond eight per day (where RDOs accrue), would impact directly upon employees to 
whom the Building On-site Award applies and indirectly in relation to agreement making, in 
that the reduced application of overtime payments could occur without compensating benefits 








[2013] FWC 4576

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which would otherwise be required for agreement approval in order to meet the better off 
overall test.

[116] To the extent the CCIWA variation seeks a comprehensive remote work provision, 
reflecting what CCIWA characterises as current practice, it fails. It incorporates some 
provisions which are inconsistent with the evidence as to current practice. Further, current 
practice in remote locations involves substantial additional beneficial terms and conditions, 
including specific remote location provisions, which have not been incorporated into the 
CCIWA proposed variation.

[117] I am not satisfied that the variation proposed is necessary or appropriate to achieve the 
modern awards objective.

[118] The Building On-site Award will not be varied to give effect to the CCIWA 
application.

[119] The CCIWA variation is sought principally on the basis, it submits, that absent an 
enterprise agreement, employers, and small employers in particular, are unable to access 
unpaid leave to facilitate the off-swing period of remote work rosters. If there was evidence of 
an inability in practice to access enterprise agreements or to enter into agreements with 
employees under the Building On-site Award to take unpaid leave to the extent necessary to 
facilitate the off-swing period, a variation might be contemplated in the 2014 Review, in 
terms which achieve the primary outcome sought by the CCIWA without materially altering 
other terms and conditions, and to reflect the evidence as to current practice within remote 
work undertaken in the context of the coverage of the Building On-site Award.

3. Coverage (clause 4)

[120] The applications of ABI, the HIA and the MBA each seek to vary clause 4—Coverage
of the Building On-site Award. The variations proposed can be grouped into three categories:

(i) The ABI and HIA applications to extend the modern awards referenced as 
excluded in clause 4.2 of the coverage clause by adding:

 The Premixed Concrete Award 2010115 (the Premixed Concrete Award) and 
the Asphalt Industry Award 2010116 (the Asphalt Award) (ABI); and

 The Timber Industry Award 2010117 (the Timber Award) (HIA); 

(ii) The HIA application to vary clause 4.8—coverage by more than one award; 
and

(iii) The MBA application to insert a provision clarifying the relationship between 
industry and occupational based awards in determining coverage, an issue the 
MBA submitted went across all awards and was raised as an issue for 
consideration by a Full Bench considering the coverage of modern awards.118








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(A) The ABI and HIA applications to extend the modern awards referenced as 
excluded in clause 4.2

The Premixed Concrete Award119 and the Asphalt Award120

[121] ABI submitted that its proposed variation, to add the Premixed Concrete Award and 
the Asphalt Award to the list of exclusions in clause 4.2 of the Building On-site Award is 
directed towards removing confusion created by the overlapping coverage of the Building On-
site Award.

[122] It submitted that uncertainty arises in the case of the Asphalt Award from overlap in 
the definition of “civil construction” in the Building On-site Award and the definition of the 
“asphalt industry” in the Asphalt Award, both of which include “road making and the 
manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, 
bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic 
asphalt”.

[123] ABI relied on the evidence of Mr N Perumal, Commercial Manager for CTEC Pty Ltd 
(CTEC), that there was uncertainty as to whether certain work was covered by the Building 
On-site Award or the Asphalt Award, which made it difficult for CTEC to ensure that 
contractors applied industrial arrangements compliant with the National Code of Practice for 
the construction industry and the associated implementation guidelines. He also gave 
evidence that “[i]t would be beneficial if the coverage of each award was clarified as proposed 
by the amendments made by ABI to remove ambiguity and confusion as to each award’s 
coverage”.121

[124] ABI submitted that the Premixed Concrete Award excludes employees covered by the 
Building On-site Award but the Building On-site Award does not contain a reciprocal 
provision. It submitted that the lack of a reciprocal provision can create an overlap for 
employers, confusion and uncertainty as to the correct award coverage for employees.

[125] ABI submitted that the modern awards objective includes the need to ensure a simple 
easy to understand award that avoids unnecessary overlap and that providing an express 
exclusion of the Premixed Concrete and the Asphalt Awards would aid in clarification for 
employers when determining award coverage.

[126] The Ai Group supported the ABI applications.

[127] The CFMEU opposed the variations proposed by ABI to extend the exclusions in 
clause 4.2. The AWU opposed the variation, submitting that rather than reduce potential 
confusion, the ABI proposal would alter the status quo in terms of relationship between each 
of those two modern awards.

[128] In relation to the Asphalt Award, the CFMEU and the AWU noted that the Award 
Modernisation Full Bench had specifically considered the relationship between the Asphalt 
Award and the Building On-site Award when making the Building On-site Award122 and in 
making the Asphalt Award in Stage 3. In the Stage 3 decision, the Award Modernisation Full 
Bench said:








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“We have retained roadmaking within the coverage clause of the award. Roadmaking, 
in this context, is intended to comprehend those elements of roadmaking associated 
with the asphalt industry and undertaken by employers within the industry as defined. 
Other roadmaking activity, undertaken by employers within the civil construction 
sector of the building, engineering and civil construction industry, will fall within the 
coverage of the Building, Engineering and Civil Construction Industry General On-site 
Award.” 123

[129] Clause 4.2 of the Building On-site Award was formulated by the Award 
Modernisation Full Bench, following specific consideration of coverage as between the 
Building On-site Award and the Asphalt Award. The distinction between the two modern 
awards in respect of roadmaking is clear from the decision of the Award Modernisation Full 
Bench. 

[130] The only evidence of any practical issues arising in relation to that coverage was the 
evidence of Mr Perumal. It is insufficient to warrant a variation on the basis of the 
considerations arising out of Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. 
No cogent reason has been established for departing from the current considered provision 
determined by the Award Modernisation Full Bench. In any case, it is not apparent on the 
evidence how the addition of the Asphalt Award to the exclusions in clause 4.2 of the 
Building On-site Award would assist CTEC in applying the distinction between the work 
reflected in the observations of the Award Modernisation Full Bench in its Stage 3 decision. 

[131] In relation to the Premixed Concrete Award, the CFMEU submitted that there is no 
evidence of any confusion over the coverage of that award. The AWU submitted that 
submissions were put to the Award Modernisation Full Bench regarding the relationship 
between the Building On-site and the Premixed Concrete Awards.124 The AWU submitted 
that the Award Modernisation Full Bench issued a statement on 22 May 2009 which included 
the following consideration of the relationship between the Building On-site Award and the 
modern Premixed Concrete Award:

“It appears that premixed concrete batch plants are predominantly operated by 
employers in the premixed concrete industry, servicing customers in a variety of 
industries including the on-site building, engineering and civil construction industry. 
There are, however, some employers in the on-site building, engineering and civil 
construction industry who have purchased and operate their own plant, principally in 
relation to road-making. We think that batch plant operators and associated premixed 
concrete classifications should fall within the coverage of the modern award covering 
the employer – the Premixed Concrete Award 2010 in the case of employers within 
that industry and the Building and Construction General On-site Award 2010 in 
relation to employers in that industry. The industry of the employer should determine 
the coverage. As a result, we have included in the coverage clause of the premixed 
concrete industry exposure draft an exclusion in relation to employers and their 
employees in the on-site building, engineering and civil construction industry, covered 
by the Building and Construction General Onsite Award 2010. We propose to vary 
that award to add, in clause 4.2, an exclusion in relation to the Premixed Concrete 
Award 2010 when that award is made.” 125








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[132] In the case of the Premixed Concrete Award, the distinction between that award and 
the Building On-site Award is again clear from the reasons of the Award Modernisation Full 
Bench. However, in the case of the Premixed Concrete Award, it is also clear from its reasons 
that the Award Modernisation Full Bench intended to add an exclusion in relation to the 
Premixed Concrete Award within clause 4.2 of the Building On-site Award. The absence of 
such an exclusion, as intended by the Award Modernisation Full Bench, reflects an error 
which I will correct, pursuant to s.160 of the Act on the basis of the submissions put in the 
current proceedings. I note that such an exclusion would operate consistently with the 
coverage between the two modern awards as indicated by the Award Modernisation Full 
Bench and would not have the effect of narrowing the coverage of the Building On-site 
Award in respect of employers within the industry covered by the Building On-site Award.

The Timber Award126

[133] The HIA seeks a variation to clause 4.2 of the Building On-site Award, to add the 
Timber Award to the list of exclusions. The HIA put limited submissions in support of the 
specific variation concerning the Timber Award. The HIA seemed to rely on its broader 
submissions in relation to the confusion which, it submitted, arose from the potential overlap 
of several awards which might cover its members, including the Building On-site Award and 
the Timber Award.

[134] That general material provides little support for the specific variation concerning the 
Timber Award. The fact that a majority of respondents to a HIA survey (the details of which 
are not in evidence) did not find it easy to know what award they were covered under 
provides no evidence as to the practical impact of absence of the Timber Award from the 
exclusions in clause 4.2 of the Building On-site Award.

[135] To the extent that the HIA relied on a statement of Ms M Adler,127 Executive 
Director–Workplace Relations, it may be noted that Ms Adler’s statement addresses the 
Timber Award only to the extent of noting a “significant overlap” between that award and the 
Building On-site Award, and including the classification descriptor for Levels 1–7; clause
4.2(d) Manufacturing Sector128 in Annexure A to her statement and a series of correspondence 
attached to the statement which identify the Timber Award and the Building On-site Award as 
potentially relevant to their members in terms of award coverage. The practical issues raised 
in the correspondence focus on potential overlap in relation to factory based work between the
Timber Award and the Joinery and Building Trades Award 2010,129 (the Joinery Award) in 
relation to on-site work between the Joinery Award and the Building On-site Award and the 
Gardening and Landscaping Services Award 2010130 and the Building On-site Award. There 
is no evidence of significant practical problems arising from any overlap between the Timber 
Award and the Building On-site Award.

[136] Further, the submissions of the HIA in relation to its application to vary clause 4.2 of 
the Building On-site Award went no further than the proposition, in the context of its broader 
submissions as to a general uncertainty as to coverage amongst its members, that the Timber 
Award should also be identified as an express exclusion within clause 4.2 to assist in 
alleviating the confusion for overlap between these modern awards.131 That proposition falls 








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well short of establishing a cogent reason for varying the Building On-site Award in the 
manner proposed.

[137] The Ai Group supported the HIA application.

[138] The CFMEU opposed the variation proposed by the HIA to extend the exclusions in 
clause 4.2 of the Building On-site Award. It submitted that clause 4.2 does not limit the 
generality of the exclusion in clause 4.1, but indicates that the Building On-site Award does 
not cover employers covered by the awards mentioned in clauses 4.2(a) to (g)—they do not 
cover work in the on-site building, engineering and civil construction industry. It submitted 
that clauses 4.1 and 4.2 make it clear that the Building On-site Award applies to on-site work 
and that it is the only modern award that applies to on-site work (as long as the employees are 
covered by the classifications within that modern award).

[139] The issue of the coverage of the Building On-site Award was discussed extensively 
during the Part 10A award modernisation process. No cogent reason has been advanced to 
justify the variation to the terms of clause 4.2, which arose out of that process in relation to 
the Timber Award. The HIA application in respect of the Timber Award is refused.

(B) The HIA application to vary clause 4.8—Coverage by more than one award

[140] The HIA application seeks to vary clause 4.8 as follows (deletions proposed by HIA 
are square bracketed and additions are underlined):

“4.8 (a) Where an employer is covered by more than one award, an employee of that 
employer is covered by the award [delete - classification] which is most 
appropriate [delete - to the work performed by the employee and to the 
environment in which the employee normally performs the work]
considering the employer’s predominant work activities and environment in 
which the work is predominantly performed.

(b) This award does not apply to employers whose predominant activities are 
the manufacture or fabrication of building products in an off-site or factory
environment.”

[141] It is unclear in the HIA submissions whether the current note in clause 4.8 would be 
retained or deleted.

[142] The provision which the HIA seeks to vary is a common provision within all modern 
awards, determined during the Part 10A award modernisation process.132

[143] The HIA submitted that uncertainty as to this award coverage is a significant issue for 
HIA members, with 61% of respondents to a HIA survey indicating that members did not find 
it easy to determine which modern award they were covered by. The HIA submitted that the 
proposed variation related to “a number of members who are employers with businesses that 
carry out a diverse range of business activities. For example, an employer who employs both 
offsite employees to work in a joinery workshop and onsite employees to install the cabinetry 
built in that offsite joinery workshop, or employers who run a landscaping business and are 








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engaged in both work in connection with a construction site, and gardening/maintenance type 
work that follows practical completion or is in connection with private houses.”133

[144] The HIA submitted that the present clause 4.8 of the Building On-site Award appears 
to require the employer to conduct an assessment of the “employee’s” work and work 
environment, as opposed to the employer’s circumstances. It submitted that this is 
inconsistent with an industry award, which would require an assessment of the employer’s 
circumstances and inconsistent with the award modernisation process which had a number of 
objectives of “reducing the regulatory burden on business”, creating modern awards that were 
“simple to understand and easy to apply” and avoiding the overlap of modern awards that may 
apply to a particular employee.

[145] The HIA submitted that clarification as to the intention of this coverage clause is 
required and will be best achieved through its proposed variation, by providing that award 
coverage is to be determined by the employer’s predominant activities. The HIA relied on a 
submission put to the award modernisation hearings134 in support of its proposed variation, 
questioning the application of multiple modern awards to cover what it submitted is one 
industry. It submitted that the prospect of having to apply multiple modern awards for similar 
activities within the one workplace creates unnecessary confusion and complexity. To support 
its proposition about overlapping coverage and confusion, the HIA relied on correspondence 
between it and the Fair Work Ombudsman in which the central issue for HIA members 
revolved around the overlapping coverage of the Manufacturing Award,135 the Joinery Award 
and the Timber Award.136

[146] The Ai Group supported the HIA’s proposed variation to clause 4.8 on the basis that it 
would be consistent with the current exclusion in relation to factory based awards—the 
Manufacturing Award and the Joinery Award, to which should be added the Timber Award.

[147] The CFMEU opposed the variation of clause 4.8 proposed by the HIA. It submitted 
that the clause was a standard clause within modern awards, determined during the Part 10A 
award modernisation process. The CFMEU submitted that there is no confusion because the 
Award Modernisation Full Bench in the proceedings clearly decided that work undertaken on-
site is covered the Building On-site Award. It submitted that the HIA variation proceeds on 
the mistaken belief of HIA that clause 4.2 of the Building On-site Award prevents an 
employer being covered by more than one modern award. It submitted that all clause 4.2 does 
is recognise the exclusive coverage, which is set out in clause 4.1 of the Building On-site 
Award and, once it is recognised that the Building On-site Award applies to on-site work 
only, then the application of clause 4.8 is more easily understood, and that it recognises that 
an employer can be covered by more than one modern award. The CFMEU submitted that 
position is consistent with the way the industry has operated for the past 50 years—if an 
employee is engaged in an off-site establishment, then the off-site award applies. The 
CFMEU submitted that the variation proposed by the HIA in respect of clause 4.8 seeks to 
change the test to be applied where more than one modern award applies, from a test based on 
the activities of the employee to one based on the activities of the employer. 

[148] The HIA submissions137 were premised on the proposition that the current clauses 
within the Building On-site Award do not recognise the distinction between the coverage and 








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application of a modern award, referring only to coverage and thereby providing no guidance 
as to the application of the modern award.

[149] The HIA is correct in its submission that neither clause 4 of the Building On-site 
Award, nor any other provision within it, provides guidance as to the application of the 
modern award, save to the extent it establishes coverage, which is one material factor in 
determining the application of a modern award.138 That proposition is true of every modern 
award. That position is hardly surprising. Division 3—Terms of modern awards—of Part 2–3 
of the Act requires coverage terms within modern awards.139 It does not require terms dealing 
with the application. The application of a modern award is determined by s.47 of the Act (and 
any provisions of the kind referred to in s.47(1)(c), including s.57 of the Act). A modern 
award is incapable of providing practical guidance as to its application in respect of the 
matters in ss.47(1)(b) and (c) of the Act. Modern awards can and do provide guidance as to 
their coverage (s.47(1)(a)). 

[150] As noted by the Award Modernisation Full Bench:

“At this stage we have not listed employers to whom an award does not apply. Whether 
an award applies to a particular employer will depend, among other things, upon 
whether the employer is an employer within the meaning of the Act and whether the 
employer is bound by an enterprise award as defined in the Act. We have adopted the 
relevant definitions in each draft. We do not think it is desirable to embark on a series 
of cases to decide such questions as whether an employer is a constitutional 
corporation, whether an employer is bound by an enterprise award, etc. Such questions 
could in any event only be finally decided by a court.”140

[151] Whilst the HIA is correct in its submission that the Building On-site Award provides 
no guidance as to the application of the modern award, other than by establishing its coverage, 
it is unclear what relevance that proposition has to or what support it lends to its application to 
vary the coverage clause.

[152] Clause 4.8 was included in the Building On-site Award, and most other modern 
awards, to provide a basis for deciding which modern award applies in the case of overlap.141

The provision is premised on the existence of an overlap, having been formulated in the 
context of the reference in the consolidated Award Modernisation Request to the desirability 
of avoiding overlap between modern awards and, in cases of overlap or potential overlap, the 
inclusion of clear rules to identify which modern award applies.142

[153] The HIA variation is directed to providing that award coverage is to be determined by 
the employer’s predominant activities and avoiding the prospect of having to apply multiple 
modern awards for similar activities within the one workplace. The HIA variation seeks to 
remove any overlap or potential overlap by providing that where overlap would otherwise 
arise, coverage is determined by the “predominant activity” of the employer, with the effect 
that employee’s undertaking work within the scope of the non-predominant activity would not 
be covered by the modern award which would apply under the terms of its coverage clause.

[154] Such an outcome is inconsistent with the clear terms of clause 4.8, as a mechanism 
applied generally across modern awards for deciding which modern award applies in the case 








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of overlap or potential overlap. Further, in relation to the Building On-site Award, it is 
inconsistent with the clear distinction of the Award Modernisation Full Bench, between work 
undertaken in the context of the on-site building, engineering and civil construction industry 
and comparable work under classifications which is not undertaken in that on-site context. 
Such a distinction is clear in the decisions of the Award Modernisation Full Bench in relation 
to concrete batching,143 roadmaking144 and landscaping.145 The HIA proposal would 
fundamentally alter the effect of the provision and the position of the Award Modernisation 
Full Bench, considered both generally and in relation to potential overlap in respect of the 
Building On-site Award.

[155] Clause 4.8 was included in the Building On-site Award by the Award Modernisation 
Full Bench, in terms reflected generally within modern awards, to provide a basis for deciding 
which modern award applies in the case of overlap, having regard to the terms of the 
consolidated Award Modernisation Request and the submissions of interested parties. The 
variation proposed by the HIA fundamentally alters the intent and the effect of the provision 
formulated by the Award Modernisation Full Bench. The HIA’s case in support of the 
variation was directed to addressing confusion amongst its members in circumstances of 
potential overlap in coverage. However, the variation proposed by the HIA to the provision 
determined by the Award Modernisation Full Bench, to apply where an employer is covered 
by more than one modern award, significantly alters the effect of the clause, being directed to 
removing work from the coverage of the Building On-site Award, rather than providing a 
process to apply where overlap exists. No proper basis has been advanced for altering the 
focus within clause 4.8, from the work performed by the employee and to the environment in 
which the employee normally performs the work, to the employer’s predominant work 
activities. No basis has been established to support the inclusion of the HIA’s proposed clause 
4.8(a) which is, in effect, a provision narrowing the coverage of the Building On-site Award 
and not, as it was intended to be, a basis for deciding which modern award applies in the case 
of overlap. The HIA has not made out a cogent reason for departing from the provision 
determined by the Award Modernisation Full Bench decision, generally or in the particular 
circumstances of the on-site building and construction industry. This element of the HIA 
application is refused.

(C) The MBA application to vary clause 4.8

[156] The MBA proposed a variation to clause 4.8 of the Building On-site Award (and 
coverage clauses across all modern awards) to insert additional words of the following kind:

“Where industry-based awards do not contain an appropriate classification for an 
employee, regard may be had to occupational-based awards which specifically 
describe the occupation in their coverage clauses.”

[157] Clause 4.8 provides:

“4.8 Where an employer is covered by more than one award, an employee of that 
employer is covered by the award classification which is most appropriate to 
the work performed by the employee and to the environment in which the 
employee normally performs the work.








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NOTE: Where there is no classification for a particular employee in this award 
it is possible that the employer and that employee are covered by an award with 
occupational coverage.”

[158] The MBA proposed that the note within the existing clause 4.8 be replaced in order to 
provide clarity and reinforce the observations of the Award Modernisation Full Bench in its 
decision in relation to the making of the Priority awards.146

[159] The variation was opposed by the CFMEU, the CEPU and the AMWU as unnecessary 
and by the Ai Group and AMWU on the basis that there is no good reason for those model 
provisions to be disturbed.

[160] The Award Modernisation Full Bench considered the requirements of the consolidated 
Award Modernisation Request and the extensive submissions made concerning coverage in 
determining the provisions dealing with overlapping coverage,147 found in clause 4.8 of the 
Building On-site Award and the coverage clauses of most other modern awards. The variation 
was proposed by the MBA essentially to confirm the reasoning of the Award Modernisation 
Full Bench in relation to interaction between potentially applicable modern awards, and the 
relationship between industry and occupational based awards.148

[161] The current terms of clause 4.8, including the note, included by the Award 
Modernisation Full Bench, gives effect to its decision in relation to overlapping coverage and 
was formulated in the context of the requirements of the consolidated Award Modernisation 
Request and the submissions before it. The MBA has advanced no cogent reason for varying 
the clause referable to Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. There 
is no basis for varying clause 4.8 in the terms proposed by the MBA in order to give effect to 
the modern awards objective. This element of the MBA application to vary is refused.

[162] The MBA in its submissions also invited me as a “senior member of the Tribunal” to 
endorse a four step process determining award coverage. I do not think it is appropriate for me 
to do so. It is unnecessary to do so for the purpose of determining the applications before me 
and would be inappropriate to do so in circumstances where parties with an interest in other 
modern awards have not had an opportunity to put submissions. Modern award coverage is to 
be determined on the basis of the coverage provisions of the modern awards, in the context of 
the observations of the Award Modernisation Full Bench in formulating those terms—at a 
general level in the statement149 and the decision150 in relation to the Making of Priority 
awards and, at a particular level, in the statements and decisions attending the making of 
specific modern awards.

4. The HIA application included an amended variation151 to add a new clause 10.3, 
providing that clause 10.2 does not apply to employees engaged after 1 January 2012

[163] The HIA submitted that some confusion exists in relation to employees who were 
employed on a daily hire basis before the commencement of the new modern awards. It 
submitted that the fact that the Building On-site Award has come into operation would not 
change the status of a daily hire employee if the pre-modern award had not required that the 
employee be informed of the terms of their engagement in writing. The HIA submitted that 








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employers and employees would benefit from clarity on this issue, through its proposed 
amendment.

[164] Whilst the CFMEU was prepared to consent to the variation originally proposed by the 
HIA, on the basis that it provided clarification, it did not support the amended proposed 
variation, submitting that there has been no evidence to justify it.

[165] The obligation upon an employer under clause 10.2 to inform each employee, in 
writing, of the terms of their engagement and, in particular, whether they are to be daily hire, 
full-time, part-time or casual employees at the time of engagement can only be applied 
subsequent to the making of the modern award and to the engagement of employees after that 
time. The HIA variation is unnecessary and is not required to give effect to Item 6, Part 2 of 
Schedule 5 of the Transitional Provisions Act. The variation is refused.

5. CFMEU application to vary the definition of “daily hire employee” in clause 11 to 
limit daily hire to the general construction stream

[166] The CFMEU’s application seeks to vary clause 11 to replace the current words—“A 
daily hire employee means a tradesperson or labourer engaged subject to the following 
provisions:” with “A daily hire employee means a tradesperson or labourer engaged, in the 
general construction stream (defined in Schedule B), subject to the following provisions:”.

[167] The CFMEU submitted that prior to the making of the modern award daily hire 
employment had traditionally only applied to tradespersons and labourers engaged in the 
general construction stream, with the “overwhelming majority of the awards that contain daily 
hire were limited to those applying to building tradespersons as distinct from mechanical or 
electrical tradespersons and labourers operating in the general construction stream”.152 It 
submitted that the relevant proposed variation seeks to restore this arrangement. The effect of 
the variation would be to limit daily hire employees to tradespersons and labourers engaged in 
the general construction stream. 

[168] The CFMEU submitted that its application seeks to deal with an anomaly - an issue 
specific to the Building On-site Award, and is, “therefore, [of] a special and isolated nature 
and it is not a matter that could be used as a vehicle for general improvements in pay and 
conditions”.153 In this regard, the CFMEU submitted that anomaly, within Item 6(2), Part 2 of 
Schedule 5 of the Transitional Provisions Act should attract a meaning arising from the 
Anomalies and Inequities principles154 of the National Wage Case decision August 1988. 

[169] The CFMEU variation was supported by the AWU, the CEPU and the AMWU.

[170] The MBA opposed the CFMEU variation, submitting that merely asserting that the 
modern award does not contain the pre-reform structure or a matter in a pre-reform award is 
not in itself sufficient to justify variation. It submitted that the Award Modernisation Full 
Bench considered the notion of the application to daily hire when the modern award was 
made155 and that the CFMEU brought “no evidence at all, to show that the expansion of daily 
[hire] . . . has created a problem in the real world”.156








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[171] The HIA, CCIWA, the Ai Group and ABI also opposed the variation, supporting the 
submissions of the MBA.

[172] I am not persuaded that an anomaly within Item 6(2), Part 2 of Schedule 5 of the 
Transitional Provisions Act should be derived from the specific tests attached to the terms in 
the Wage Fixation Principles adopted by the AIRC within the wage fixation system of the 
1970s and 1980s. However, the broad meaning of “anomaly” derived from that Anomalies 
principle, within that system, is in any case one of exception, consistent with the intent to 
limit wage rises beyond those arising from general increases (indexation or productivity) 
within the Wage Fixation Principles. 

[173] The CFMEU seeks to justify its application on the basis that the restricted use of daily 
hire it proposes is consistent with the predominance of pre-modern instruments which 
operated in the industry. This ignores the fact that the concept of daily hire attracted very 
specific consideration of the Award Modernisation Full Bench157 and that the Full Bench 
opted for a single modern award for the on-site building and construction industry, with only 
limited specific differences in terms and conditions between sectors.158 The CFMEU has not 
established cogent reasons for departing from the provisions determined by the Award 
Modernisation Full Bench in respect of employment types included in the Building On-site 
Award, after specific consideration of the issue of daily hire and specific consideration of 
what differential conditions should be included in the modern award to reflect the various 
sectors of the industry brought within it. Nor has the CFMEU established that the failure by 
the Award Modernisation Full Bench to replicate the sectoral provisions in respect of daily 
hire in the single Building On-site Award is an anomaly. The issue raised by the CFMEU is 
not one of an anomaly in the general meaning of an “Irregularity, deviation from the common 
or natural order, exceptional condition or circumstance”.159 The award modernisation process 
both generally and within the on-site building and construction industry brought together 
differently regulated industry sectors within broader industry awards. The proposition that the 
failure to maintain a previous sectoral difference within a broader industry award is an 
anomaly is not sustainable, given that it would not be an exceptional outcome, either in 
respect of the Building On-site Award or in other modern awards—as one example, the 
Manufacturing Award.160 The CFMEU application is refused.

[174] The CFMEU submitted that if the variations it proposed were not accepted, certain 
technical variations required attention:

 inclusion of all of the specific allowances and conditions involving the daily hire 
and weekly hire hourly rate calculations (refrigeration allowance and the 
electricians allowance); and

 the reference to part-time daily hire employees in clause 23.9—Inclement 
weather.

[175] These matters did not form part of the CFMEU application and were not fully debated 
in the proceedings before me. The CFMEU can, if it chooses, raise these matters in the 4 
yearly review provided for in Division 4 of Part 2–3 of the Act.








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6. HIA application to vary clause 14.2—in relation to the non-applicable rates and 
conditions, to add RDO accrual

[176] Clause 14.2 of the Building On-site Award provides that:

“A casual employee is entitled to all of the applicable rates and conditions of 
employment prescribed by this award except annual leave, paid personal/carer's leave, 
paid community service leave, notice of termination and redundancy benefits.”

[177] The HIA submitted that confusion exists as to whether a casual employee is entitled to 
accrue RDOs, this should be addressed by varying clause 14.2 to add “rostered days off” to 
the excluded conditions. The HIA submitted that the application of RDOs to casuals goes 
against the intention of an individual being engaged as a casual employee.

[178] The HIA submitted that the New South Wales Industrial Relations Commission 
Secure Employment Test Case (NSWIRC Secure Employment Test Case) provides evidence 
that the casual loading provided for in the Building On-site Award is to compensate the casual 
employee for the non-availability of RDOs.161 It also relied on advice from the Fair Work 
Ombudsman in relation to the Joinery Award.

[179] The HIA submitted that the absence of an exclusion of RDOs as an entitlement of 
casual employees in the 2000 version of the NBCIA reflects the limitations on the duration of 
casual employment permitted such that it would never have needed to be contemplated that a 
specific provision be inserted to exclude the application of RDOs from casual employees. It
submitted that when the maximum period of engagement for casual employees was increased 
to six weeks in 2002, following the Metal and Engineering and Associated Industries Award
1998 Casuals Case,162 (the Casuals Case) the parties did not turn their minds to the need to 
specifically exclude the operation of the RDO system to casuals.

[180] The CFMEU opposed the variation. It submitted that there is nothing in the casual or 
the hours of work clauses that excludes casuals from working under an RDO system. It 
further submitted that there is a provision which recognises that an employer and their 
employees may agree not to work an RDO system, so that whether a casual is to accrue RDOs 
or not would, to a large extent, depend on their engagement.

[181] The CFMEU submitted that the Casuals Case, in identifying the main components to 
be assessed in determining casual loading163 made no reference to the lack of accrual of 
RDOs. It submitted the position arising from the Casuals Case was reflected in the variation 
to the NBCIA in 2002.164

[182] The CFMEU also submitted that the exclusion, or otherwise of RDO provisions, was 
raised in the Stage 2 award modernisation process in relation to the making of the Building 
On-site Award, with the MBA, in its 10th submission, seeking a specific exclusion to RDOs 
being included in the casual employment clause.

[183] The HIA has not established a case for varying clause 14.2 of the Building On-site 
Award to give effect to the requirements of Item 6, Part 2 of Schedule 5 of the Transitional 
Provisions Act by including RDOs as one of the modern award matters which does not apply 








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to casual employees in light of the casual loading. Clause 14.2 was formulated by the Award 
Modernisation Full Bench having regard to the submissions made, including those in the 
MBA’s 10th submission, and having regard to the terms of pre-modern instruments. RDOs 
were not one of the excluded matters in clause 13.4.1 of the NBCIA, which was inserted in 
2002165 to give effect to changes arising out of the Casuals Case.166 Clause 13.4.1 of the 
NBCIA did not include RDOs as one of the excluded conditions, which is unsurprising given 
the Casuals Case decision did not include RDOs as an excluded condition in determining the 
casual loading. Nor did any notional agreements preserving State awards (NAPSAs) exclude 
RDOs in the casual loading provision. The NSWIRC Secure Employment Test Case did not 
specifically consider the applicability of RDO provisions to casual employees. No evidence 
was brought by the HIA to support the variation by reference to the 2012 Review 
considerations. No cogent reason has been established for varying the Building On-site 
Award as sought by the HIA. This part of the HIA application to vary is refused.

7. ABI application to vary clause 14.3 the matters an employer is required to advise an 
employee of, when engaged for casual employment, and the CFMEU application to vary 
clause 14.5 in respect of payment of the casual loading

[184] The variations sought to clause 14.3 are:

 A CFMEU application to add “daily hire or weekly hire” before casual; and

 An ABI application to delete “the actual or likely number of hours to be worked”.

[185] Clause 14.3 of the Building On-site Award provides:

“An employer, when engaging a person for casual employment, must inform the 
employee, in writing, that the employee is to be employed as a casual, stating by whom 
the employee is employed, the job to be performed, the classification level, the actual 
or likely number of hours to be worked, and the relevant rate of pay.”

[186] The CFMEU proposed variation to clause 14.3 is linked to its proposed variation to 
clause 14.5 in respect of the basis of payment of the casual loading in that they both seek to 
rectify what the CFMEU characterises as a “technical problem that has arisen in regard to 
determining how casual rates of pay are to be calculated and to clarify that casuals can be 
employed as daily hire casuals and weekly hire casuals”.167 The CFMEU’s variation to clause 
14.5 seeks to replace:

“A casual employee must be paid a casual loading of 25% for ordinary hours as 
provided for in this award.” 

with: 

“A casual employee must be paid an additional casual loading of 25%, based on the 
hourly rates calculated in accordance with clause 19.3, for ordinary hours worked in 
accordance with clause 33. Hours of Work.” 








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[187] The CFMEU has not established a need for the variation within the context of the 
2012 Review process. The 25% applies to the rate otherwise applicable in compensation for 
the absence of annual leave, paid personal/carer’s leave, paid community service leave, notice 
of termination and redundancy benefits. It is neither appropriate, nor necessary to deal with 
the rate to which the casual loading applies within the clause specifying the casual loading. 
Further, the CFMEU has not identified any practical problem or any other basis referrable to 
the considerations in Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act to 
warrant variation of the Building On-site Award within the 2012 Review process. The issue 
raised by the CFMEU is about the rate to which the casual loading applies. The CFMEU 
submitted that the hourly rate calculation for daily hire employees includes the follow-the-job 
loading. There is no evidence that the terms of clause 14.3 and/or clause 14.5 have disturbed
the practice, reflected in most of the pre-modern awards, of applying this loading to casuals. 
The MBA submitted that it advises employers that casual loadings should be applied to 
follow-the-job rates, i.e. as calculated under clause 19.3(a). The CFMEU has not provided any 
evidence to suggest that the terms of clause 14.3 and/or clause 14.5 have caused any practical 
problems or otherwise operates contrary to the modern awards objective. It has not 
established cogent reasons to vary clauses 14.3 or 14.5 of the Building On-site Award. This 
element of the CFMEU application is refused.

[188] There exists a broader debate as to any overlap of the factors contemplated by the 
follow-the-job loading and the casual loading, as reflected in the submissions of the MBA and 
refuted by the CFMEU. That question was not fully ventilated in the current proceedings and 
no basis was established for considering that issue for the purposes of the 2012 Review. 

[189] The ABI application seeks to remove the current requirement on employers, when 
engaging casual employees, to specify the actual or likely number of hours to be worked by 
casual employees. ABI submitted that the requirement is inconsistent with the engagement of 
casual employees because often employers will not know the actual or likely number of hours 
worked. It relied on the statement of Mr Perumal, of CTEC that:

“It can be difficult to accurately specifying the likely number of hours for casual 
employees due to the fact that casuals are hired to meet the short term requirements of 
the business. Therefore CTEC respectfully proposes that it would be sensible to amend 
the terms of the Award to remove this requirement for casual staff, as it would allow 
our engagement of staff to reflect the changing nature of their engagement depending 
upon the availability of work on each project.”168

[190] The CFMEU opposed the variation, submitting that the statement of Mr Perumal is not 
sufficient evidence to justify a variation to the Building On-site Award. It submitted that there 
is no specific evidence of actual casual engagement of employees, or specific instances of 
problems with the application of the clause. The CFMEU submitted that this part of the casual 
employment clause is a common provision in the majority of modern awards and has been 
contained in most pre-modern awards for over 10 years. 

[191] I am not persuaded that the variation should be made. Clause 14.3 appears in the terms 
of clause 13.4.2 of the NBCIA, having been inserted in 2002169 to give effect to changes 
arising out the Casuals Case.170 That clause was carried over to the Building On-site Award, 
as occurred in respect of the equivalent provision of the Metal, Engineering and Associated 








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Industries Award 1998,171 save that the words “actual or” were not carried over to the 
Manufacturing Award. The generalised evidence of Mr Perumal, which suggested the 
variation was “sensible”, falls well short of providing a basis for the variation in order to 
achieve the modern awards objective. No cogent reason exists to vary the terms of clause 14.3 
as determined by the Award Modernisation Full Bench. The ABI application to vary clause 
14.3 is refused.

8. HIA variations to the casual conversion process in clause 14.8, reflected in clauses
14.8(a), (d), (e), (f), (g), (h) and (j)

[192] The HIA sought a variation to clause 14.8—Casual conversion to full-time or part-
time employment, on the basis that the terminology could be improved to make it clear that it 
provides a right to request to have employment converted to full-time or part-time and that the 
conversion is not automatic.

[193] Clause 14.8 of the Building On-site Award reflects the casual conversion clause 
determined in the the Casuals Case.172 The Award Modernisation Full Bench included it in 
place of the more restrictive provision inserted by consent as clause 13.4.2 of the NBCIA173

which restricted the employment of casual employees on a regular and systematic basis to a 
period not exceeding six weeks:

“We have removed, from each award, restrictions on the maximum duration of casual 
employment, replacing them with a casual conversion clause.”174

[194] The casual conversion provision is one reflected in many modern awards and in many 
pre-modern awards before 1 January 2002 in the terms formulated by the Full Bench in the
Casuals Case. There is no evidence to suggest that those terms operate in a problematic way 
or in a way which is inconsistent with the Building On-site Award or more generally in 
respect of other modern awards containing the casual conversion clause. It is clear from the 
terms of clause 14.8(e) that conversion is subject to the right of an employer to refuse, 
providing the refusal is not unreasonable and subject to compliance with clauses 14.8(g) and 
(j). No cogent reason has been advanced for varying the Building On-site Award in the 
manner proposed by HIA. This part of the HIA application to vary is refused.

9. HIA application to vary the industry specific redundancy scheme (clauses 17.2 and 
17.3 in respect of the definition of redundancy and the insertion of a new clause 17.3 which 
exempts employers who employ less than 20 employees at the time of the terminations)

[195] The HIA application seeks to replace the definition of redundancy to one more 
reflective of the National Employment Standards (NES) in s.119 of the Act and to exempt 
from the provision employers who employ less than 20 employees at the time of the 
terminations. The variations are supported by other employer associations.

[196] The HIA supports it application on the basis of submissions that:

 The industry specific redundancy scheme provided for in clause 17.3 presents a 
number of problems for small businesses in the residential sector of the industry.








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 The current provision does not represent a fair minimum safety net.

 The current provision negatively impacts staff retention and requires employers to 
budget for resignation payments over which they have no control.

[197] The HIA also submitted that immediately prior to 1 January 2010, employees who 
were covered by a pre-modern award and are now covered by the a modern award were not 
entitled to the benefit of a payment of the nature provided for in the industry specific 
redundancy scheme now contained within the Building On-site Award, with the Full Court of 
the Federal Court of Australia finding that this was not an allowable award matter in the 
context of the pre-modern NBCIA.

[198] The HIA submitted that the definition of redundancy in clause 17.2 must still have 
regard to the overall aims and objectives of the Act, which were not relevant at the time the 
definition was first introduced into the predecessor NBCIA.

[199] The HIA submitted that the provisions in the redundancy provision in the NES would
be more appropriate to meet the circumstances of the home building industry.

[200] The MBA submitted that whilst the Award Modernisation Full Bench decision175

potentially means that the small business exemption does not apply to employees covered by 
the Building On-site Award, it falls short of an explicit statement as to that matter.

[201] The unions opposed the variation sought by the HIA. The CFMEU submitted that 
there is a very long and tortuous history in regard to the redundancy benefits payable under 
the building and construction industry awards and it was clearly a matter that was before the 
Award Modernisation Full Bench. It submitted that the Award Modernisation Full Bench 
determined to include in the Building On-site Award the industry specific redundancy scheme
in the terms of clause 17 and there is nothing new, nor any other cogent reason, to depart from 
the decision of the Award Modernisation Full Bench when it made the Building On-site 
Award. The CFMEU also submitted that there has been no exemption for small business 
employers under any redundancy provisions in the on-site building and construction awards, 
particularly the NBCIA and its predecessors. 

[202] The HIA, in supporting its variations argues the issues from first principles, advancing 
arguments put and considered by the Award Modernisation Full Bench in the making of the 
Building On-site Award, rather than in reliance on the matters within Item 6, Part 2 of 
Schedule 5 of the Transitional Provisions Act and without regard to the approach to the 2012 
Review set out in the 29 June 2012 Award Modernisation Full Bench decision,176 which 
considered preliminary questions as to the approach to be taken in the 2012 Review.

[203] The decision of the Award Modernisation Full Bench in respect of the terms of the 
industry specific redundancy scheme, including its broader application arising from the 
definition of “redundancy”,177 specifically considered the terms and history of the redundancy 
prescriptions within modern awards in the building and construction industry178 and
deviations within it from the NES.179 Most significantly the Award Modernisation Full Bench 
considered and rejected the suggestion that the definition of “redundancy” should be modified 
to reflect the NES,180 the very argument agitated in the current proceedings by the HIA, 








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without identifying any changed circumstances or any other cogent reason to support 
variation of the Building On-site Award.

[204] The decision of the Award Modernisation Full Bench in respect of the small business 
exemption in the Building On-site Award is consistent with its general approach to the small 
business exemption within modern awards, reflected in its 19 December 2008 decision181 in 
relation to the making of Priority modern awards. The approach taken—that as a general rule 
the small business exemption will be maintained, except for pre-modern awards and industries 
in which there was no small business exemption prior to the Redundancy Case 2004182—had 
regard to the full arbitral and legislative history of redundancy pay for employees of small 
business. 

[205] The HIA has done nothing more than to re-argue some of the issues raised and 
determined by the Award Modernisation Full Bench in including in the Building On-site 
Award the industry specific redundancy scheme, in the terms of clause 17. The HIA has put 
no cogent reasons for altering the terms of clause 17 of the Building On-site Award which 
were the product of extensive debate and a considered decision by the Award Modernisation 
Full Bench. This claim by the HIA is refused.

10. Simplification/Rationalisation of allowances

[206] The allowance provisions in the Building On-site Award are lengthy and complex, 
largely reflecting a consolidation of allowances prescribed in pre-modern instruments. The 
need for rationalisation of the allowance provisions in the Building On-site Award was noted 
by the Award Modernisation Full Bench.183 Similar observations were more recently made by 
the Full Bench184 which determined an MBA 2012 Review application to remove provisions 
which purport to regulate work health and safety on the ground that they are not lawful, which 
concluded:

“[83] The desirability of a rationalisation of allowance terms in the On-site Award 
raised by the Australian Industrial Relations Commission Full Bench in January 2009 
remains. This may occur in the context of the 2012 Review of the On-site Award, 
which remains before Senior Deputy President Watson, to the extent that the particular 
terms are in issue and there is sufficient material and input from interested parties 
before him in relation to those particular terms. To the extent that particular terms 
which might benefit from review are not before his Honour or there is insufficient 
material for the purpose of the 2012 Review, any outstanding rationalisation of 
allowances in the On-site Award could occur in the 2014 Review.”

[207] The complexity of the allowance provisions led to proposed variations within the 
current applications directed to achieving some level of rationalisation of the allowance 
provisions:

 The MBA proposed a comprehensive overhaul of allowances;

 The CFMEU applied to add a new clause 22.1(f) providing for a consolidated 
special rates allowance.; and








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 The HIA applied to vary, in an amended form,185 the table in clause 19.1(a), 
minimum wages related to allowances and to include allowances in a new 
Schedule E186 of the Building On-site Award, represented as “skill” or “expense 
related” allowances not payable for all purposes or “disability” allowance payable 
for all purposes.187

[208] The various applications were subject to discussions between the interested parties but 
without resolution. Following those discussions, the MBA188 and the HIA189 did not press 
their proposals, subject to pursuing them within the 2014 Review and the CFMEU did not 
press its application for a new clause 22.1(f) within the 2012 Review.

[209] Whilst the HIA did not press its application for a new schedule of allowances, nor its 
application for a differential application of certain allowances in respect of the residential 
building sector,190 it maintained its application to vary the table in clause 19.1(a), minimum 
wages by including both the special and industry allowance in the minimum rate, creating 
“rolled up” rates that include certain all purpose allowances. Such a proposal is inconsistent 
with the approach of the Award Modernisation Full Bench to separately identify properly 
fixed minimum rates and any additional payments and allowances and describe the basis of 
their application,191 reflecting Item 26 of the consolidated Award Modernisation Request, and 
with s.139(2) of the Act which requires that “[a]ny allowance included in a modern award 
must be separately and clearly identified in the award”. This variation is refused. 

[210] The HIA also proposed a number of variations as consequential amendments 
associated with its proposal to vary the table in clause 19.1(a), minimum wages.192 Given my 
decision in respect of clause 19.1(a), the consequential amendments will not be made.

[211] No variation will be made to the allowance provisions in relation to the broader 
applications to rationalise allowance provisions. There are, however, a number of specific 
variations sought in relation to allowances, which fall outside the compass of the broad 
rationalisation proposals. They are considered later in this decision.

[212] I note that the major parties interested in the Building On-site Award have made some 
attempt in this 2012 Review to address the allowance issues raised by the Award 
Modernisation Full Bench, but no common approach between them has yet emerged. Partly 
because those parties have spent some time exploring common ground, there is limited 
material and evidence before me in relation to those issues and insufficient information for me 
to embark on a rationalisation of the allowance provisions. The MBA and the HIA have 
foreshadowed that they will revisit the issue in the 2014 Review. I encourage interested 
parties to further explore common ground in relation to the issue well in advance of the 2014 
Review. Absent any level of agreement, any proposals to vary the Building On-site Award in 
the 2014 Review would need to be supported by evidence and argument. It may be that the
major parties can bring their common experience to an assessment of the contemporary 
relevance and application of various allowances and proposals for consolidation based on 
some common practical understanding of the incidence and appropriate valuation of possible 
consolidated allowances and other relevant issues, which might reduce the burden on the 
parties to substantiate action to further address the allowance provisions in the Building On-
site Award in the 2014 Review.








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11. HIA application to vary clause 20.1(a)—tool allowance

[213] Clause 20.1(a) provides a tool allowance which must be paid for all purposes of the 
Building On-site Award, at different levels depending on the classification of the employee.
Clause 20.1(b) provides for the reimbursement of the expense to employees where they 
provide particular tools. Clause 20.1(a) is expressed in similar terms to that of clause 24.3.1 of 
the NBCIA.193

[214] The HIA submitted that the current drafting of clause 20.1(a) of the Building On-site 
Award places an undue financial burden on businesses in the industry. It agreed that where an 
employee provides and maintains their tools and protective boots an employee should be 
entitled to compensation in the form of an allowance but submitted that where the expense is 
not incurred—in circumstances where an employer provides the tools or the employee fails to 
bring the tools to work or maintain the tools so they are safe and suitable for use—the 
employee should have no entitlement to compensation. The HIA submitted that the variation 
simply desires to clarify that the allowance is payable when the expense is actually incurred.

[215] The HIA proposed that clause 20.1(a) be varied to read:

“A tool allowance must be paid for all purposes of the award in accordance with the 
following table, except where the employer provides the employee with all tools and 
protective boots necessary to carry out the work or if the employee fails to bring tools 
to work or to maintain tools so that they are safe and suitable for use.”194

[216] The HIA variation was supported by other employer organisations and opposed by the 
unions. In opposing the variation, the CFMEU submitted that the tool allowance is not 
payable for the provision of tools but for the maintenance of the tool kit that the employee 
provides. The payment of the tool allowance is nothing new under the construction awards
and has been payable as part of the all purpose rate for on-site tradespeople since the first pre-
modern awards/instruments were ever made and that the HIA brought no evidence of the tools 
that are provided by the employers and whether those tools they provide are fit for the job.

[217] I am not persuaded that the HIA has established cogent reasons for the variation. 
Clause 20.1(a) was included in the Building On-site Award in terms reflecting the NBCIA 
provision which has a longstanding history. The HIA has sought to justify its variation by way 
of a “‘fresh assessment’ unencumbered by previous Tribunal authority”195 without little 
regard to the approach to the 2012 Review set out in the 29 June 2012 decision of the Award 
Modernisation Full Bench.196 The HIA has not established cogent reasons for departing from 
the provision incorporated into the Building On-site Award having regard to the submissions 
put to it and the provisions within pre-modern instruments.

12. HIA application to vary clauses 24.3 and 24.4—living away from home

[218] The HIA applied to vary clause 24.4(a)—Messing system on the basis that the 
interaction between clause 24.4(a) and clauses 24.3(a)(i) and 24.3(a)(ii) was unclear and that 
were these provisions to operate simultaneously, this would produce an anomalous outcome.








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[219] In its amended form197 the HIA proposed variation would replace clauses 24.3, 24.4 
and 24.5 with a new clause 24.3 and 24.4 (with rates reflecting 1 July 2013 levels) as follows:

“24.3 Entitlement

Where an employee qualifies under clause 24.1 the employer will:

(a) pay a living away from home allowance of $438.25 per complete week. In the 
case of broken parts of the week the living away from home allowance will be 
$62.70 per day. This allowance may be increased if the employee satisfies the 
employer that the employee reasonably incurred a greater outlay than that 
prescribed; or

(b) provide the worker with reasonable board and lodging in a well kept
establishment with three adequate meals each day.

(c) The accommodation provided will be of a reasonable standard having regard to 
the location in which work is performed, including the provision of reasonable 
ablution/laundry, recreational and kitchen facilities, as well as reasonable 
external lighting, mail facilities, radio or telephone contact and fire protection.

24.4 Entitlement–Camping

(a) Where an employee qualifies under clause 24.1 the employer will:

i. Where 10 or more employees are engaged, the employer will provide a 
cook. If there are less than 10 employees, the employer must reimburse 
employees for food reasonably purchased by them for their own use or 
must reimburse the reasonable cost of meals consumed in the nearest 
recognised centre

ii. In camps over 30 people the employer must employ a camp attendant.

Camp attendant means an employee engaged for the purpose of 
maintaining a camp in a clean and hygienic condition.

iii. In all camps the employer must provide labour for the purpose of 
maintaining the camp in a clean and hygienic condition.

(b) Where an employer has established a camp site and provides facilities for 
employees living in their own caravan, the employer must provide reasonable 
space for the caravans. An employee living in a construction camp where free 
messing is not provided must receive a camping allowance of $186.08 for 
every complete week the employee is available for work. In the case of broken 
weeks, the camping allowance will be $26.56 per day including any Saturday 
or Sunday if the employee is in camp and available for work on the working 
days immediately preceding and succeeding each Saturday and Sunday. If an 
employee is absent without the employer’s approval on any day, the allowance 








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will not be payable for that day and if such unauthorised absence occurs on the 
working day immediately preceding or succeeding a Saturday or Sunday, the 
allowance will not be payable for the Saturday and Sunday.

(c) Where a charge is made for meals in a construction camp, the charge will be 
fixed by agreement between the employer and the majority of affected 
employees.

(d) Clause 24.4 applies to the exclusion of clause 24.3.”

[220] The HIA submitted that there is confusion in the industry with the amended variation 
seeking to clarify that there exists two distinct types of living away from home 
arrangements:198

(i) when the employee is provided with a monetary allowance or when the 
employee is provided board and lodging and three meals per day; and

(ii) a camping scenario in which for camps of more than 10 a cook must be 
engaged or if less than 10, reimbursement of food related expenses occurs.

[221] The HIA submitted that the most significant change is the new clause 24.4(d) which 
states how the exclusion would operate.

[222] The CFMEU expressed some sympathy for the initial variation put forward by the 
HIA, which was to simply add to the existing prescription in clause 24.4(a) with a proviso that
it will not apply where the employee is provided with three meals per day in accordance with 
clause 24.3(a)(ii).

[223] As originally proposed, the HIA variation altered clause 24.4(a) by the addition of the 
words underlined below:

“Where 10 or more employees are engaged, the employer will provide a cook. If there 
are less than 10 employees, the employer must reimburse employees for food 
reasonably purchased by them for their own use or must reimburse the reasonable cost 
of meals consumed in the nearest recognised centre, provided this subclause will not 
apply where the employee is provided with three meals per day in accordance with 
clause 24.3(a)(ii).”

[224] The CFMEU did, however, have a major concern with the HIA’s amended variation. 
In this regard, it submitted that clause 24.3(b) requires accommodation of reasonable standard 
in respect of employees living away from home. The CFMEU submitted that if the provision 
about employees living in camp is taken out of clause 24.3(a), it would be necessary to 
replicate clause 24.3(b) in any new clause, adding an unnecessary complication to the 
Building On-site Award. The CFMEU submitted that there is no evidence of confusion in any 
case, but if the Commission were persuaded to vary the Building On-site Award, the variation 
originally proposed by the HIA would deal with the problem they have identified.








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[225] The most significant element of the HIA variation is to make it clear that the 
entitlement to reimbursement for meals does not apply where the employer provides all 
meals. That is a proposition with which the CFMEU has some sympathy. The amended 
variation seeks to restructure the provision to make it clearer. However, that clarity is not 
readily apparent. Further, as proposed by HIA, the amended provision seems to exclude the 
possibility to utilise camps, which the MBA sought to address by a further amendment.199

[226] I am satisfied that there is uncertainty within the current clauses 24.3—Entitlement 
and 24.4—Messing system which should be rectified in the interest of simple, easy to 
understand modern awards within the modern awards objective. That uncertainty relates to 
whether an employer is required to reimburse the cost of meals in circumstances where the 
employee is provided with three meals per day in accordance with clause 24.3(a)(ii). That 
clarity is achieved by the variation in the form initially proposed by the HIA. The further 
renumbering of clauses 24.3 and 24.4 does not achieve the further clarification suggested and, 
unless further amended, creates unintended consequences.

[227] I am persuaded to vary clause 24.4—Messing system, but in the terms reflected in the 
HIA’s initial application, as reworded in paragraph 223.

13. HIA application to vary clauses 25.2–25.8—Fares and travel patterns allowance—
(subject to the agreed position in relation to clause 25.5 as reworded in the table in 
paragraph 35 above)

[228] The HIA proposes that clauses 25.2 to 25.8 be deleted and replaced with:

“25.2 Fares and excess travelling allowances

a) The fares and travelling time allowances are daily allowances where the 
employee is required to:

i. start or finish work at a job site; and

ii. uses his/her own vehicle or uses public transport.

b) The fares and travelling time allowances are not payable for any day on which 
the employee:

i. is absent from work, or

ii. is required to start or finish work at the employer’s workshop, yard or 
depot, or

iii. is provided with by the employer, or is offered to be provided with by 
the employer, accommodation that is located at the job site.

c) The fares allowance is not payable for any day on which the employer 
provides, or offers to provide, the employee with transport from where the 








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employee is living to the job site and return (including transport provided by 
the employer when the employee is working at a distant job site).

d) Fares allowance

Subject to clauses 25.2 (a), (b) and (c), employees will be paid a fares 
allowance of $17.01 per day.

e) Excess travelling allowance

If an employee travels beyond the defined radius, in addition to the fares 
allowance in clause 25.5, the employee will be entitled to:

i) payment for time reasonably spent in travelling from the boundary of 
the defined radius and return to the boundary of the defined radius, 
calculated at ordinary on-site rates to the next quarter of an hour

ii) any excess expenses reasonably and necessarily incurred in travelling 
from the boundary of the defined radius and return to the boundary of 
the defined radius, which will be $0.46 per kilometre where the 
employee uses their own vehicle.

iii) The defined radius is 50km from the centre of employment as 
determined by the employer by reference to one of the following 
options:

A. the employer’s normal base establishment or workshop;

B. the GPO, or Principal Post Office of the capital city or major 
regional centre for all employers whose base establishment or 
workshop is within the defined radius from the said Post Office;

C. the local Post Office closest to the employer’s establishment or 
workshop beyond the defined radius of the Post Offices listed 
above;

D. in the case of employees engaged on distant work (as defined) 
the place at which such employees are domiciled with the 
approval of their employer, for that distant job;

E. in the case of an employer that does not have a fixed base 
establishment or workshop, the Post Office closest to the town 
or city nominated by the employer as the place where the 
employee ordinarily carries out work. The nominated town or 
city may be changed upon the employer providing 2 weeks 
notice of the change to the employee.”200

[229] The proposed variation seeks to limit the payment of the fares and travel patterns 
allowance when an employee uses their own vehicle or public transport. That element of the 








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variation overlaps with the variations to clause 25.8—Provision of transport, which is 
considered immediately below.

[230] Otherwise the HIA variation is based on the proposition that a lack of specificity 
comparative to a number of pre-modern awards as to the appropriate radial area to choose 
creates the anomalous situation that:

 Radial areas may overlap.

 Employers faced with a construction site located within overlapping radial areas 
are at a loss as to determine which radial area is appropriate.

 Such factors introduce uncertainty as to the appropriate calculation of other 
clauses within clause 25 as these are influenced by the deduction of a “radial 
area”.

[231] The HIA proposes that these issues be addressed by its variation which links the 
appropriate radial area to the location where the employee is originally engaged on work, as 
nominated by the employer.

[232] The CFMEU opposed the variations to clauses 25.2–25.8, save for the variation to 
clause 25.5—Travelling outside radial areas, in the form agreed with the HIA and considered 
in paragraphs 35–42. The CFMEU submitted, in relation to the additional elements of the 
HIA claim, that the wording of the clause creates much confusion for employers and 
employees and is not supported by evidence of actual confusion on the ground, with the HIA 
relying on hypothetical examples to substantiate the existence of confusion. 

[233] Further, the CFMEU submitted the HIA seeks to make substantial changes to the 
clause which would in effect allow an employer carte blanche scope to change the radial area 
to determine an employee’s entitlement on each job, with:

 the employer determining the defined radius by reference to one of several 
options;

 the nominated town or city may be changed upon the employer providing two 
weeks’ notice of the change to the employee, with entitlements dependent upon 
the fluctuating decisions of the employer; and

 a substantial change to the entitlements available to employees, without evidence 
to justify a change.

[234] Clause 25—Fares and travel patterns allowance was included in the Building On-site 
Award in its current form by the Award Modernisation Full Bench having regard to the terms 
of pre-modern instruments and the submissions of interested parties, including, at the 
exposure draft stage, reflecting a formulation of travel and distant work provisions of the 
MBA.201








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[235] The HIA brought no evidence of practical problems arising from clause 25, no 
evidence of changed or otherwise significant circumstances, nor any evidence to support 
substantive changes to the operation of the provision, through the variation it proposes by 
reference to the modern awards objective, or by establishing an anomaly or technical problem. No 
cogent reason has been advanced to vary clause 25 in the manner proposed by the HIA. This 
variation is refused.

14. HIA and MBA applications to vary clause 25.8—Provision of transport, daily fares 
and travel patterns allowance

[236] The variation is sought so that payment is not payable where an employer provides a 
vehicle:

 “where the employer provides a company vehicle to the employee for the 
employee’s benefit” (HIA); or

 “when an employee receives a vehicle free of charge inclusive of free fuel” 
(MBA).

[237] The applications are directed, on their face, to remove the entitlement to employees to 
the fares and travel patterns allowance in circumstances where an employee derives some 
private benefit from the supply of a vehicle by their employer. The applications are directed to 
the same effect as the MBA application in AM2009/162, which sought to add a new clause 
25.8(c): 

“In order to be eligible for the allowance prescribed in this clause, the vehicle provided 
by the employer must be used solely for purposes related to the employee's 
employment. Where the vehicle is also used for private use or some other benefit, the 
allowance will not be payable.”202

[238] That application was rejected by the Award Modernisation Full Bench on the basis 
that:

“The variation sought is inconsistent with the terms of cl.38.6 of the NBCIA, upon 
which cl.25.8 is based. No circumstances have been raised which persuade us to give 
effect to this variation.”203

[239] Neither the MBA nor the HIA have provided any cogent reason why the decision of 
the Award Modernisation Full Bench in making the Building On-site Award and in refusing 
the similar application by the MBA should be disturbed. 

[240] In any case, the applications are flawed.

[241] First, the HIA and MBA submissions do not establish any basis upon which the daily 
fares and travel patterns allowance described in clause 25.1 would not apply because an 
employee enjoys some private benefit from an employer provided vehicle. There is no 
association, or logical trade-off between the two. 

[242] The MBA, for example, submitted that:








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“Given that the fares and travel patterns allowance is intended to compensate the ‘travel 
patterns and costs peculiar to the construction industry, which include mobility in
employment and the nature of employment’, it would appear unnecessary to provide 
the allowance where an employee’s travel is effectively free of charge due to the 
provision of a vehicle”.204

[243] It is immediately clear, that the variations sought are erroneously premised on the 
basis that the fares and travel patterns allowance is prescribed solely in compensation for 
travel costs. 

[244] The misconceived basis of the fares and travel patterns allowance on which the MBA 
and HIA submissions are demonstrated on the face of clause 25.1, which requires employees 
to start and cease work on-site, without payment for travel except in the circumstances 
specified in clauses 21.1, 24.7, 25.5, 25.7 and 36.3. It then provides that the fares and travel 
patterns allowance recognises travel patterns and costs peculiar to the on-site building and 
construction industry, which include mobility in employment and the nature of employment 
on construction work. The two elements are related. As observed by the CFMEU, the 
provision has a long history, recounted up until 1979 by a Full Bench of the Commonwealth 
Conciliation and Arbitration Commission in an anomaly matter concerning The National 
Building Trades Construction Award 1975.205 The Full Bench approved an increase in the 
allowance, but noting that problems had arisen from misleading and changing titles to the 
allowances, they did so on the basis that the title of the clause reflected the purpose of the 
allowance, renaming it “Compensation for travel patterns, mobility requirements of 
employees and the nature of employment in the construction work covered by this award”.206

[245] Secondly, the HIA variation does not deal with the extent of private benefit and the 
MBA variant does not require private benefit at all, simply the provision of a vehicle at no 
cost to the employee for unstated reasons. There is a world of difference between the private 
benefit of a fully maintained vehicle provided for unlimited private usage and one provided as 
a “tool of trade” subject to Fringe Benefit Tax exemption, conditional upon private use of 
certain vehicles “limited to certain work-related travel and non-work-related use that is minor, 
infrequent and irregular”.207

[246] The HIA and MBA proposition that the allowance is provided wholly in relation to 
travel expenses incurred by employees and should not be paid when the employer meets the 
costs of transport, ignores the history of clause 25.1, the basis of the fares and travel patterns 
allowance and the nature of the industry. Those elements of the HIA and MBA applications 
are dismissed.

15. ABI application to vary clause 31.4 to make the requirement to pay wages on 
termination “as soon as is reasonably practicable”

[247] Clause 31.4 of the Building On-site Award provides that:

“When notice is given, all monies due to the employee must be paid at the time of 
termination of employment. Where this is not practicable, the employer will have two 








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working days to send monies due to the employee by registered post (or where paid by 
EFT the monies are transferred into the employee’s account).”

[248] The immediacy of payment has historically reflected the high incidence of short-term 
employment within the industry.

[249] ABI submitted the provision adversely impacts employers in relation to productivity, 
employment costs and the regulatory burden. It submitted that the provision is outdated and 
administratively burdensome in that it requires processing of payments outside of the 
business’ normal pay run and fails to reflect external banking deadlines outside of the 
employer’s control, in a number of circumstances termination payments can be delayed, 
resulting in a technical breach of the Building On-site Award. 

[250] It relied on the evidence of Mr Perumal that:

“The award also requires that CTEC and our contractors to makes [sic] termination 
payments within one day of termination of employment. Such requirement places a 
significant extra administrative burden upon CTEC and our contractors to avoid 
breaches of clause 31.4 of the Building and Construction Modern Award. Employees 
on CTEC’s project are often engaged in isolated areas, and in the event of termination 
of an employee, CTEC would find it more manageable if the final pay is made in 
accordance with its usual pay run. The proposed amendment would remove the 
administrative burden of running an isolated pay run for each employee that is 
terminated.”208

[251] In its oral submissions, ABI indicated that it was prepared to alter its proposed 
variation to add the words “requiring payment no later than the employees next usual pay 
day” to assist in the objective of providing a fair safety net.209

[252] Subject to that amendment, clause 31.4 as proposed by ABI would read:

“When notice is given, all monies due to the employee must be paid as soon as is 
reasonably practicable, requiring payment no later than the employees next usual pay 
day.”

[253] The CFMEU opposed the variation, submitting that the evidence brought by ABI does 
not justify a variation, being premised on the proposition that payment is required within one 
day of termination of employment, whereas the current clause also provides that where this is 
not practicable the employer will have two working days to send moneys due to the employee 
by registered post or where paid by EFT the moneys are transferred into the employee’s 
account. It submitted that there is nothing cumbersome or a burden on employers to pay 
someone within two working days of termination and there was no justification for the 
variation.

[254] The CFMEU submitted that the payment provision, upon termination, was reflected in 
similar terms in other modern awards and in a 2012 Review application made in similar terms 
by ABI in respect of the Graphic Arts, Printing and Publishing Award 2010210 which had 
been refused.








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[255] The AWU opposed the variation on the same basis as the CFMEU and also submitted 
that the existing provision is appropriate in the particular circumstances of the on-site building 
and construction industry which is based on short-term project work and an often itinerant 
workforce.

[256] I am not persuaded that there are cogent reasons to depart from the provisions within 
clause 31.4 of the Building On-site Award determined by the Award Modernisation Full 
Bench. The requirement for payment upon termination on the day of termination or the next 
working day is found in other modern awards211 in terms which are more onerous than the 
Building On-site Award provision, which provides additional flexibility in circumstances 
where payment at the time of termination of employment is not practicable. The evidence of 
Mr Perumal, was premised on an absolute requirement for payment at the time of termination 
and the proposition that the variation is “more manageable” is insufficient to justify departure 
from the provision determined by the Award Modernisation Full Bench. Further, the evidence 
and the variation had no regard to the interests of employees in the particular circumstances of 
the industry. The variation is refused.

16. HIA application to vary clause 33—Ordinary hours of work–day works

[257] The HIA submitted that the current ordinary hours provisions are unable to 
accommodate the needs of the industry and fail to reflect a paradigm shift in the way people 
work and the immediacy with which people demand services and this has impacted on how a 
business can operate. It submitted that the Building On-site Award needs to be varied in order 
to reflect this change in circumstances to provide flexibility to work more than eight 
(ordinary) hours per day.

[258] The HIA proposed the following amended variation:

“Delete the current clause 33.1 and 33.1(a) and replace with:

33 Ordinary Hours of Work–Day works

33.1 Except as provided elsewhere in this award, the ordinary hours of work 
for an employee are 38 or an average of 38 hours per week not exceeding 153 
hours in 28 days.

a) Ordinary hours for a day worker must be worked as eight hours 
per day, between 6.00 am and 6.00 pm Monday to Friday, over 
a 20 day four week cycle, with 0.4 of one hour of each day 
worked accruing as a paid rostered day off in each cycle.

b) Where it is agreed between a majority of employees and the 
employer that a paid rostered day off in each cycle is not 
practicable then agreement may be reached in writing on an 
alternative method of implementing ordinary hours, including:








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i. 38 hours within a work cycle not exceeding seven 
consecutive days;

ii. 76 hours within a work cycle not exceeding 14 
consecutive days;

iii. 114 hours within a work cycle not exceeding 21 
consecutive days;

iv. 152 hours within a work cycle not exceeding 28 
consecutive days; or

v. any other work cycle during which a weekly average of 
38 ordinary hours are worked.

c) Not more than 10 hours exclusive of meal breaks (except if paid 
overtime rates) are to be worked in any one day.

d) By agreement between the employer and the majority of 
employees concerned, ordinary hours ordinary hours not 
exceeding 12 hours on any one day may be worked.

e) The paid rostered days off must be implemented:

i. by the employer fixing one day in a cycle on which all 
employees will be off;

ii. by the employer rostering employees off on various days 
in a cycle so that each employee has a paid rostered day 
off during the cycle; or

iii. by any other method which is agreed to by the employer 
and a majority of employees.

f) Where any paid rostered day off falls on a public holiday, the 
next working day must be taken instead of the paid rostered day 
off unless an alternative day is agreed in writing between the 
employer and an employee.

g) Each day of paid leave (except the paid rostered day off) and 
any public holiday taken during a cycle of four weeks must be 
regarded as a day worked for accrual purposes.

h) Where the working of the 38 hour week is agreed to in 
accordance with this clause, an employee and the employer may 
agree to a banking system of up to a maximum of five rostered 
days off. An employee would therefore work on what would 
normally have been the employee’s rostered day off and accrue 
an entitlement to bank a rostered day off to be taken at a 








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mutually convenient time for both the employee and the 
employer, provided not less than five days’ notice is given 
before taking the banked rostered day(s) off.

i) No payments or penalty payments are to be made to employees 
working under this substitute banked rostered day off. However 
the employer will maintain a record of the number of rostered 
days banked.

j) An employee who has not worked a complete 19 day four week 
cycle must be paid accrued pro rata entitlements for each day 
worked on the rostered day off or, in the case of termination of 
employment, on termination. 

[k] An employee who works on a paid rostered day off, or any 
substituted day, must be paid the penalty rates and provisions 
prescribed for Saturday work in clause 37—Penalty Rates.”212

[259] The HIA submitted that there are working hour scenarios that cannot be 
accommodated by the current provisions within the Building On-site Award—providing 
hypothetical examples of rosters for work, week one being Monday to Thursday of 10 hours a 
day or Monday to Saturday working eight hours a day and week two being Monday to 
Thursday at seven hours a day. It submitted that such working arrangements can be
accommodated within other related modern awards—in the Manufacturing Award, the 
Timber Industry Award and the Joinery Award.

[260] The CFMEU, and the other unions, opposed the variation proposed by the HIA. The 
CFMEU submitted that the hours of work provisions that are proposed to be included in the 
Building On-site Award were in issue before the AIRC Full Bench and the Part 10A award 
modernisation process, with the Ai Group, HIA, ABI, Australian Federation of Employers 
and Industry and MBA seeking more “flexible” provisions. It submitted that the matter now 
raised by the HIA was clearly a matter before the Award Modernisation Full Bench. Further, 
it submitted that the HIA brought no evidence in regard to the working of the hours suggested 
by the HIA notwithstanding the prevalence of enterprise agreements in the building and 
construction industry, which would support such arrangements if they applied in the industry. 
It submitted that there is no sufficient reason to vary a matter determined in the Part 10A 
award modernisation process.

[261] The HIA submission re-argued the basis of the hours provision in the Building On-site
Award, a matter specifically considered by the Award Modernisation Full Bench when 
making the Building On-site Award. The HIA provided no evidence of changed 
circumstances, the effect of the current award provisions at a practical level or other cogent 
reasons to support the variation of the provision determined by the Award Modernisation Full 
Bench in light of similar arguments advanced before it during the Part 10A award 
modernisation process. No cogent reasons have been established to vary the hours provision 
in clause 33—Ordinary hours of work. This variation proposed by the HIA is refused.








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17. MBA application to vary clause 34—Shiftwork

[262] Clause 34—Shiftwork of the Building On-site Award provides for dual regimes, with 
clause 34.1 regulating shiftworkers in the general building and construction and metal and 
engineering construction sectors, and clause 34.2 covering shiftworkers in the civil 
construction sector.213 Whilst the Award Modernisation Full Bench invited further input from 
interested parties directed to simplification of the provisions and some degree of commonality 
of shift provisions, the Building On-site Award as published retained the separate provisions.

[263] The MBA variation did not go to simplification or greater commonality between the 
two sets of provisions, with the MBA submitting that it is very difficult to resolve the 
differences between shift loadings and definitions without markedly increasing or decreasing 
entitlements. However, the MBA proposed simplifying amendments to clause 34 to “make its 
interpretation easier, in relation to shift definitions and loadings” as follows:214

 shift definitions in clause 34.1(a) “re-drafted based on when they commence, 
rather than cease”;

 remove the reference to “ordinary hours” in clause 34.1(d), which, the MBA 
submitted, was included by error;

 vary clause 34.1(e) to include reference to “morning” and “early morning” shifts 
and also providing that “24 minutes of each eight hour shift will accrue towards a 
rostered day off”; and

 commonality of terminology in relation to the “application of overtime, weekend 
and public holiday loadings for shift workers” between clauses 34.1 and 34.2 
provisions.

[264] The MBA proposed that shift definitions in clause 34.1(a) be re-drafted based on when 
they commence to achieve consistency with the mode of expressing shift times in clause 34.2. 
Whilst the CFMEU was prepared to consult with the MBA in relation to defining shifts by 
reference to the time of commencement rather than cessation, it opposed the MBA variation 
to do so absent an agreed provision. I am satisfied that the variation, which is not intended to 
alter the effect of the provision, would provide greater consistency at least with the manner of 
expressing shift times with that used in clause 34.2 and would provide greater clarity. The 
variation will be made, so that clause 34.1(a) will read:

(a) Definitions

For the purposes of this clause:

afternoon shift means a shift commencing at or after 1.00 pm and before 
3.00 pm

night shift means a shift commencing at or after 3.00 pm and before 11.00 pm








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morning shift means a shift commencing at or after 4.30 am and before 
6.00 am

early afternoon shift means a shift commencing on or after 11.00 am and 
before 1.00 pm.

[265] Limited submissions were made in relation to the MBA application to remove the 
reference to ordinary hours in clause 34.1(d). It is not clear that the reference to ordinary 
hours is in error and no clear basis has been established for the removal of the reference. This 
variation will not be made.

[266] In relation to the references to “morning” and “early morning” shifts proposed by the 
MBA, the CFMEU did not oppose the concept, but submitted that the references should be to 
“morning” and “early afternoon” shifts and the reference in clause 34.1(e) to “rostered day 
off” proposed by the MBA should be to “paid rostered off shift”, to achieve consistency with 
clause 34.2. Clause 34.1(e) in its present form does not include reference to each of the shifts 
defined in clause 34.1(a) but would apply to each of them. For clarity, clause 34.1(e) will be 
varied to include “morning” and “early afternoon” shifts, as defined in clause 34.1(a). Further, 
the addition proposed by the MBA to clarify the accumulation of time for the taking of “paid 
rostered off shift”, applying the terminology of clause 34.2(d) for consistency. Clause 34.1(e) 
will be varied to read:

(e) The ordinary hours of morning, early afternoon, afternoon and night shift will 
be eight hours daily inclusive of meal breaks. Provided where shiftwork 
comprises three continuous and consecutive shifts of eight hours each per day, 
that 24 minutes of each shift will accrue towards a rostered off shift and a crib 
time of 20 minutes duration will be allowed on each shift, and will be paid for 
as though worked. Such crib time will be instead of any other rest period or 
cessation of work elsewhere prescribed by this award.

[267] The MBA submitted that even if the other changes which it proposed to achieve 
rationalisation of how shifts are defined were not given effect, clause 34.1(g) should be varied 
to remove any uncertainty by making notice required by the ceasing time of the proposed day 
shift in clause 34.1(g)—i.e. 7.00 pm. It submitted that such a variation was required because 
clause 34.1(g) states that the “hours for shiftworkers, when fixed, must not be altered except 
for breakdown or other causes beyond the control of the employer, provided that notice of 
such alteration must be given to the employee not later than the ceasing time of the previous 
day shift”, but “day shifts” are not defined in clause 34.1.

[268] In its submissions, the Ai Group contended that clause 34.1(g) should be amended to 
require notice not later than ceasing time of the previous “day’s shift”, rather than “day shift”, 
so that it is a reference to the ceasing time of the previous equivalent shift, rather than to a day 
shift which is not defined in the Building On-site Award.

[269] The CFMEU was not opposed to the clarification of clause 34.1(g) or a variation to 
make it clear so that it is a reference to the previous equivalent shift. It did oppose the 
variation in the form proposed by the MBA because it would increase the spread of ordinary 
hours per day and affect employees’ entitlement to payment.








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[270] There is agreement that the terms of clause 34.1(g) are ambiguous in the reference to 
“day shift” and should be corrected. I am satisfied that it does constitute a technical problem 
and requires correction. The correction should be limited to providing clarity. There is no 
basis for the broader variation, as proposed by the MBA, which would alter ordinary hours for 
day workers. Further, the inclusion of day work within shift arrangements might create 
uncertainty as to the possible application to day workers of other incidents of shiftwork, 
clause 34.1(g) will be varied to read:

(g) The hours for shiftworkers, when fixed, must not be altered except for 
breakdowns or other causes beyond the control of the employer, provided that 
notice of such alteration must be given to the employee not later than the
ceasing time of their previous shift.

18. HIA application to vary clause 36.2—Overtime penalty rates and computing overtime

[271] Clause 36.2 of the Building On-site Award provides:

“All time worked beyond an employee’s ordinary time of work (inclusive of time 
worked for accrual purposes as prescribed in clauses 33—Ordinary hours of work and 
34—Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for 
the first two hours and at double time thereafter.”

[272] The HIA submitted that clause 36.2 is confusing and does not clearly state whether 
overtime is to be computed on a daily or weekly basis, requiring the clause to be read in 
conjunction with the hours of work clause in clause 33 of the Building On-site Award. The 
HIA proposed215 that clause 36.2 be varied to read:

“36.2 Overtime penalty rates and computing overtime

(a) All time worked beyond an employee’s ordinary time of work 
(inclusive of time worked for accrual purposes as prescribed in clauses 
33—Ordinary hours of work and 34—Shiftwork), Monday to Friday, 
must be paid for at the rate of time and a half for the first two hours and 
at double time thereafter.

(b) Except as provided for in clause 36.11, in computing overtime each 
day’s work will stand alone.”

[273] It may be seen that the variation is, in substance, directed to the inclusion of a 
provision that in computing overtime each day’s work will stand alone. The HIA submitted 
that there is confusion as to the calculation of overtime, reflected in the evidence of 
Ms L Cooper, Workplace Services Manager with the HIA, to which was attached inconsistent 
advices from the Fair Work Ombudsman as to the calculation of overtime. The HIA’s 
experience under previous pre-modern awards was that “overtime was payable when either an 
employee was engaged for more than eight hours in a day or over 38 hours in one week”.216








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[274] The HIA has not established a need for clarification of the overtime provisions. The 
proposed clause 36.2(b) simply reflects what is clear from clause 33.1 of the Building On-site 
Award, which specifies that except for shiftwork the ordinary hours are “38 per week, worked 
between 7.00 am and 6.00 pm, Monday to Friday”; clause 33.1(a)(i), which provides that 
when working the RDO roster cycle the ordinary working hours are eight hours per day; 
clause 33.1(a)(vii), which provides that if a non RDO cycle is worked, “no more than eight 
ordinary hours are worked in any one day”; and clauses 34.1(e) and 34.2(c), which specify 
that the ordinary hours for shiftworkers are eight hours per day. The variation proposed will 
not be made.

19. AMWU application to vary clause 43 in relation to Forepersons/supervisors - a new 
clause 43.6–Definitions, amend wording in clause 43.1 and text in 43.2 and to vary Schedule 
B–Classification definitions in relation to work in technical fields and engineering 
construction technical

[275] The AMWU application initially sought several variations:

1. To vary clause 43.1 by deleting the words “but do not apply to any employer 
employing fewer than 30 employees” so that the clause reads as follows:

“43.1 These special conditions apply to forepersons and supervisors in the metal and 
engineering construction sector covered by this award.”

2. By inserting a new clause 43.6–Definitions as follows:

“43.6 Definitions

(a) Foreperson/supervisor shall mean an employee (other than a leading 
hand) appointed as such or required by his/her employer to be mainly engaged 
in the direct supervision of employees including those employed as leading 
hands, covered by this award.

(b) General foreperson/supervisor shall mean an employee appointed as 
such or required by his/her employer to be mainly engaged in the direct 
supervision and coordination of the work of at least two 
forepersons/supervisors as defined in Clause 43.6(a).”

3. By varying the table appearing in clause 43.2 by:

(i) Removing “the text ‘provided that where only juniors and/or 
apprentices are supervised, the minimum wage rate to be paid is 
$757.00 per week’ in the definition of General foreperson/supervisor 
under the heading ‘Supervision of three or more tradespersons.’”

(ii) Inserting “the following text below into the definition of Foreperson 
/supervisor under the heading ‘Supervision of other than three or more 
tradespersons, excluding leading hands’ so that definition in full reads:








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The average of the weekly wage rates for 38 ordinary hours of 
work, including payments applicable from time to time to the 
adult employees (excluding leading hands) plus $98.37, or 
$843.40, whichever is the greater, provided that where only 
juniors and/or apprentices are supervised, the minimum wage rate 
to be paid is $843.40 per week.”

4. The AMWU also applied to vary Schedule B—Classification Definitions in 
relation to work in technical fields as follows:

(i) “By varying Schedule B heading B.1.13, so that it reads as follows:

Work in a technical field includes:”

(ii) By varying Schedule B to give effect to drafting changes to move 
content under the heading of “Engineering Construction Technician 
Level . . .” in various classification levels.

[276] The AMWU submitted217 that the Building On-site Award contains a number of 
anomalies and technical problems:

(a) “The savings provision in clause 43.1 should not have been carried through into 
the Modern Building Award. This clause also existed in pre-modern awards, 
such as Part V, Clause 3.3 of the Metal, Engineering and Associated Industries 
Award 1998 (“Metals 1998 – Part V) and Appendix B, Clause 2.2 of MECA 
2002, respectively. It was properly dropped from the Manufacturing and 
Associated Industries and Occupations Award 2010, and it is an anomaly in the 
Modern Building Award.”

(b) “The definitions and the wage rates in the table at 43.2 are also anomalous.

i) It is anomalous and inappropriate that the general foreperson in both 
categories has a lower minimum wage rate than the foreperson; the 
general foreperson is responsible for supervising those workers 
employed as forepersons.

ii) It is anomalous and inappropriate for those who have the ‘supervision 
of other than three or more tradespersons,’ have a higher minimum rate 
than that of an employee who is supervising three or more trades.”

(c) “The term ‘technical area’ is defined in Schedule B.1, but does not appear 
anywhere else in Schedule B whereas the term ‘technical field’ does.”

(d) “The provisions relating to engineering construction technicians in Schedule B.2 
Classifications and related issues are anomalous; they appear as bullet points 
following a colon related to completed training requirements for engineering 
construction tradespersons.”








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[277] During a conference held on 22 November 2012, the AMWU advanced amended 
variations but advised in correspondence of 5 December 2012 that it no longer pressed the 
variations, as amended, reverting to its initial application, subject to reserving its right to re-
agitate the amended position during the 2014 Review.

[278] In correspondence of 7 December 2012, the AMWU advised that it had clarified the 
wording of its original application in light of discussions at a conference held on 6 December 
2012, again reserving its right to make a further application during the 2014 Review. The 
variations ultimately sought through the 2012 Review were as follows:

Variation 1: Clause 43.1–Opposed by other parties, to be arbitrated:

“43.1 Application

These special conditions apply to forepersons and supervisors in the metal and 
engineering construction sector covered by this award.”

[deleting “, but do not apply to any employer employing fewer than 30 
employees.”]

Variation 2: Clause 43.6–Agreement between parties by inserting a new clause:

“43.6 Definitions

(a) Foreperson/supervisor shall mean an employee (other than a leading 
hand) appointed as such or required by his/her employer to be mainly
engaged in the direct supervision of employees including those 
employed as leading hands, covered by this award.

(b) General foreperson/supervisor shall mean an employee appointed as 
such or required by his/her employer to be mainly engaged in the direct 
supervisions and coordination of the work of at least two 
forepersons/supervisors as defined in clause 43.6(a) but shall not 
include site managers, nor departmental heads and the like.”

Variation 3: Clause 43.2–Agreement between parties

Move the words “Provided that where only juniors and/or apprentices are 
supervised, the minimum wage rate to be paid is $843.40 per week.” in Table 
43.2 Wages from the General foreperson/supervisor row and Supervision of 
three or more column to the Foreperson/supervisor row and Supervision of 
other than three or more column and insert the correct amounts.

Variation 4: Schedule B.1.13–Agreement between parties

In the prelude alter “area” to “field” i.e.:

B.1.13 Work in a technical field includes:








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Variation 5: Schedule B–Agreement between parties

Formatting changes as contained in marked up form at pages 3 to 18 of the 
7 December 2012 correspondence of the AMWU. 

[279] The variations finally proposed by the AMWU, and the identification of whether the 
amended variations were agreed or not, were posted on the Commission’s website. My 
11 December 2012 statement218 afforded interested parties the opportunity to make written 
submissions in relation to the variations by 18 December 2012. No further submissions were 
received. 

[280] Variations 2–5 are agreed. Variation 1, the deletion of the exclusion of any employer 
employing fewer than 30 employees from the operation of the special provisions for 
forepersons and supervisors is opposed.

[281] The Building On-site Award will be varied in respect of the agreed variations. I am 
satisfied that in each case the variations correct error or technical deficiencies arising from the 
incorrect or incomplete translation of the pre-modern award conditions in the National Metal 
and Engineering On-site Construction Industry Award 2002219 (MECA 2002) for supervisors 
and engineering construction classifications and aids award users in determining which parts 
of the modern award apply to or affect Engineering Construction Technicians at the 
appropriate classification level.

[282] The final variation arising from the AMWU application is its application to remove 
from clause 43.1—Application—the exclusion in relation to an “employer employing fewer 
than 30 employees”. The effect of the proposed variation would be to extend the application 
of the special provisions in clause 43 to forepersons and supervisors in the metal and 
engineering construction sector covered by the Building On-site Award, including the weekly 
minimum wage rate prescribed in clause 43.2.

[283] The AMWU supported the variation by reference to the historical context of the 
exclusion: 

 The Building On-site Award is a consolidation of a number of pre-modern 
awards/instruments which includes the MECA 2002 which was preceded by the 
National Metal and Engineering On-site Construction Industry Award 1989220

(MECA 1989);

 MECA 1989 – Part III was intended to be a redraft of Part V of the Metal Industry 
Award 1984 – Part V – Foremen and Supervisors221 (Metals 1984 – Part V);

 MECA 1989 and the Metals 1984 – Part V each contained an exclusion in relation 
to employers of less than 30 at a specified time;

 The exclusion remained in that form following the Award Simplification process; 
and








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 The exclusion was not carried over to the Manufacturing Award but was carried 
over, without the “as at the date of this award” limitation within MECA 1989, into 
the Building On-site Award.

[284] The AMWU submitted that the exclusionary element of the clause was never intended 
to operate in perpetuity and should be deleted from clause 43.1 for reasons of historical 
consistency and contemporary relevance.

[285] The variation was opposed by employer organisations on the basis that:

 The exclusion in relation to those employers with fewer than 30 employees is 
longstanding and continued in the terms of the MECA 2002 when they were 
adopted into the Building On-site Award;

 The variation would extend the operation of the Building On-site Award beyond 
the application of the award to a class of persons who have never been covered by 
the provisions of the Building On-site Award or its predecessors; and

 The variation would increase wages, invoking the minimum wages objective and 
the requirement to justify the variation by work value reasons.

[286] The exclusion within clause 43.1 reflected clause 2.2 of Appendix B of the MECA 
2002, which applied the exclusion in respect of the number of employees “as at the date of 
this award”. The Award Modernisation Full Bench brought the exclusion over generally. The 
exclusion in the Building On-site Award is broader, to the extent that it is not directed to a 
number of employees at a particular time. The AMWU variation however, removes the 
exclusion entirely, including in respect of any employer excluded by virtue of the previous 
exemption calculated by reference to a specific date, having the effect of extending the 
application of the forepersons and supervisors provisions in the metal and engineering 
construction sector and increasing costs of employers so affected. 

[287] There is no evidence in relation to the practical effect of the variation sought—and in 
particular the effect of extending the exclusion—on the one hand—and removing the 
exclusion in relation to employers to whom it previously applied—on the other. No 
satisfactory basis has been advanced for removing the exclusion as it operated under the 
MECA 2002 and no cogent reason has been established for departing from the provision 
determined by the Award Modernisation Full Bench. This element of the variations as finally 
proposed by the AMWU is refused.

20. HIA application to vary schedule B—Classification definitions in relation to sub-
foreperson and foreperson (B2.7(d) and B2.8(d))

[288] The HIA proposed a variation within Schedule B to clarify that the classification of 
sub-foreperson at clause B.2.7(d) be confined to the metal and engineering construction sector 
and foreperson as defined at clause B.2.8(d) also be confined to the metal and engineering 
construction sector. 

[289] The variations sought were that:








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 The reference to “Sub-foreperson” at clause B.2.7(d) of Schedule B be amended 
to “Sub-foreperson in the metal and engineering construction sector”; and 

 The reference to “Foreperson (as defined)” at clause B.2.8(d) of Schedule B be 
amended to “Foreperson in the metal and engineering construction sector”.

[290] Sub-forepersons and forepersons were included within the classification structure in 
Schedule B of the Building On-site Award by the Award Modernisation Full Bench, 
consistent with their inclusion within the NBCIA in clause 18, as translated classifications and 
in clause 19—Award restructuring in the building and construction industry. The inclusion of 
special conditions for foremen and supervisors in the metal and engineering construction 
sector within Part 7—Industry specific provisions, of the Building On-site Award did not 
affect coverage of sub-forepersons and forepersons under the Building On-site Award, 
consistent with the NBCIA. 

[291] The HIA has not established a proper basis for the variations it proposed in respect of 
the classification structure within Schedule B of the Building On-site Award. These variations 
are refused.

Conclusion

[292] Consistent with my decision above a determination giving effect to the variations
approved in this decision is published as PR538792. It will have effect from today’s date.








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ATTACHMENT A

APPLICATION TO VARY A MODERN AWARD – 2012 REVIEW
BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010

APPLICATION BY CCIWA

PROPOSED ORDERS

A. Further to the decision issued by Fair Work Commission on [insert date] the Building
and Construction General On-site Award 2010 is varied as follows:

1. By inserting the following definitions in clause 3.1 in alphabetical order:

remote work means work required to be performed in any location that is operated 
by the employer as a remote location, including but not limited to sites operating on a 
fly in/fly out, drive in/drive out or bus in/bus out basis remote work cycle means a 
roster cycle made up of working and non-working days, where the work the subject 
of that roster cycle is remote work.

2. By deleting the words “and 34—Shiftwork” in clause 25.10(a)(ii) and inserting the 
words “34—Shiftwork, and 35—Remote work”.

3. By deleting the words “clause 34—Shiftwork” in clause 33.1 and inserting the words 
“clauses 34—Shiftwork, and 35—Remote work”.

4. By inserting a new clause 35 as follows, and re-numbering the following clauses 
respectively:

35. Remote work

35.1 Relationship with rest of the award

(a) This clause of the award provides specific detail for work that is 
remote work as defined in clause 3—Definitions and interpretation.

(b) Where a term of this clause 35—Remote work, is inconsistent with 
any other clause of the award, this clause will prevail to the extent 
of that inconsistency.

35.2 Hours of work and spread of hours

(a) This clause 35.2—Hours of work and spread of hours:

(i) replaces clause 33—Ordinary hours of work; and








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(ii) prevails to the extent of any inconsistency with clause 34—
Shiftwork, for work that is remote work.

(b) A full time employee's ordinary hours of work will be an average 
of 38 hours per week.

(c) Subject to clause 35.2(e) employees, other than shiftworkers as 
defined in clause 34—Shiftwork, may be required to work up to 10 
ordinary hours per day, between the hours of 6.00 am and 6.00 pm, 
Monday to Friday.

(d) Subject to clause 35.2(e) shiftworkers as defined in clause 34—
Shiftwork may be required to work a shift of up to 10 consecutive 
ordinary hours (including meal breaks). Shiftwork may be worked 
on any or all days of the week.

(e) An employer may agree with a majority of affected employees to 
alter the spread of hours in clause 35.2(c) and/or to increase the 
ordinary hours per day in clauses 35.2(c) and 35.2(d) to a 
maximum of 12.

(f) Clause 34.2(b)(ii) of the award does not apply where an employee 
undertakes work that is remote work, and/or is engaged to work on 
a remote work cycle.

35.3 Remote work cycle

(a) Employees may be engaged to work on a remote work cycle made 
up of working and non-working days. The total ordinary hours of 
work during a remote work cycle must not exceed 38 hours 
multiplied by the total number of working (on-duty period) and 
non-working (off-duty period) days in the cycle divided by seven.

(b) The on-duty period commences at the time the employee reports to 
the point designated by the employer for commencement of work at 
the workplace. The off-duty period commences at the conclusion of 
the employee's last rostered shift.

(c) For employees engaged to work on a remote work cycle, payments 
must be made to employees as agreed, but no less frequently than 
once per month, but nothing in this clause requires an employer to 
pay an employee on a remote work cycle during an off-duty period.

35.4 Maximum weekly hours

(a) This clause of the award provides industry specific detail and 
supplements the NES which deals with maximum weekly hours.








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(b) For the purposes of the NES an employee’s weekly hours may be 
averaged over a period of up to 26 weeks.

35.5 Rostered days off

Where an employee undertakes work that is remote work, and/or is 
engaged to work on a remote work cycle, an employer may, due to 
operational requirements roster any rostered day off (if applicable) in 
accordance with the roster cycle.

35.6 Rostering

(a) An employer may vary an employee’s days of work or start and 
finish times to meet the needs of the business by giving at least 48 
hours’ notice, or such shorter period as is agreed between the 
employer and an individual employee.

(b) Where an employee is performing shiftwork, the employer may 
change shift rosters or require an employee to work a different shift 
roster upon 48 hours’ notice. These time periods may be reduced 
where agreed by the employer and the employee or at the direction 
of the employer where operational circumstances require.

(c) The employer must consult with directly affected employees about 
any changes made under this clause.

35.7 Emergency arrangements

Notwithstanding anything elsewhere contained in this clause 35—
Remote work, an employer may vary or suspend any roster arrangement 
immediately in the case of an emergency.

5. By deleting the words “and 34 – Shiftwork” in existing clause 35.3(c) (which after 
renumbering will become clause 36.3(c)) and inserting the words “34—Shiftwork, 
and 35—Remote work”.

6. By deleting the words “and 34—Shiftwork” in existing clause 36.2 (which after 
renumbering will become clause 37.2) and inserting the words “34—Shiftwork, and 
35—Remote work”.

B. This order commences on [insert date].

SENIOR DEPUTY PRESIDENT








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Appearances:

S Maxwell for the Construction, Forestry, Mining and Energy Union.

A Kentish for the Communications, Electrical, Electronic, Energy, Information, Postal, 
Plumbing and Allied Services Union of Australia.

G Nobel and Mr Moriarty for the “Automotive, Food, Metals, Engineering, Printing and 
Kindred Industries Union” known as the Australian Manufacturing Workers’ Union 
(AMWU).

M Mead and D Murray for The Australian Industry Group.

S Hayne and A Patterson for Australian Business Industrial.

R Calver for the Master Builders Australia Limited.

R Lilburne and P Moss with R Bunting for the Chamber of Commerce and Industry WA.

M Adler with D Humphrey for the Housing Industry Association.

Z Angus for The Australian Workers’ Union.

Hearing details:

2012.
Melbourne:
August 1.
Sydney:
November 7, 8 and 9;
December 6.

2013.
Melbourne:
March 21.

Printed by authority of the Commonwealth Government Printer

Price code O, MA000020  PR538789 

                                               
1 MA000020.
2 [2013] FWCFB 2170, at para 149.
3 [2013] FWCFB 2170, attachment 3 at 7.1(g).








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77

                                                                                                                                                  
4 Correspondence from FWC - Award Flexibility, 27 March 2013 to HIA.
5 HIA correspondence of 17 April 2013.
6 [2012] FWAFB 10080.
7 MA000010.
8 [2013] FWCFB 2170.
9 HIA correspondence of 7 December 2012, in respect of its application to vary clauses 4.9, 4.10(a) and (d), and Submission 

of 8 March 2013 at Part 3 to vary clauses 20.1(d), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 29.1, 22.2(b), 22.2(d)–
22.2(j), 22.2(l)–22.2(r), 22.3(a), 22.3(i), 22.3(l) and 22.4(a)–(h).

10 Transcript, at para 637.
11 Exhibit HIA 1: HIA Summary of Amended Variations.
12 Exhibit HIA 1: HIA Summary of Amended Variations and Transcript at para 248.
13 Exhibit HIA 1: HIA Summary of Amended Variations.
14 See Exhibit HIA 1: HIA Summary of Amended Variations.
15 Exhibit HIA 1: HIA Summary of Amended Variations.
16 Statement of 11 December 2012, PR532213.
17 MBA correspondence of 1 February 2013.
18 Transcript at paras 2846–2847.
19 [2013] FWCFB 4000.
20 [2012] FWAFB 5600.
21 [2012] FWAFB 5600, at para 5.
22 [2012] FWAFB 5600, at para 19.
23 [2012] FWAFB 5600, at para 23.
24 [2012] FWAFB 5600, at para 25.
25 [2012] FWAFB 5600, at paras 33–34.
26 [2012] FWAFB 5600, at para 38.
27 [2012] FWAFB 5600, at para 48.
28 [2012] FWAFB 5600, at para 84.
29 [2012] FWAFB 5600, at para 85.
30 [2012] FWAFB 5600, at paras 86 and 88.
31 [2012] FWAFB 5600, at paras 89–90.
32 [2012] FWAFB 5600, at para 91.
33 [2012] FWAFB 5600, at para 94.
34 [2012] FWAFB 5600, at para 103.
35 [2012] FWAFB 5600, at para 115.
36 [2012] FWAFB 5600, at paras 99 and 100.
37 AP790741. 
38 See statement of 11 December 2012, PR532213.
39 PR532213, at paras 7 and 8.
40 [2013] FWC 1415.
41 [2013] FWC 1799.
42 MBA application of 7 March 2012, at page 81.
43 Transcript, at para 313.
44 MBA application of 7 March 2012, at page 81.
45 Transcript, at para 1963.
46 Transcript, at para 1747.
47 Transcript, at paras 1756–1758.








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48 Transcript, at para 1783.
49 Transcript, at para 1821.
50 Transcript, at paras 1807 and 1811.
51 See clauses 24 – Living away from home – distant work and 25 – Fares and travel patterns allowance of the Building On-

site Award.
52 MA000011. 
53 CCIWA application at Schedule B pp. 2–3.
54 Transcript, at paras 1277–1284.
55 CFMEU Reply submissions at pp. 8–9. 
56 [2012] FWAFB 5600, at para 102.
57 Evidence of Mr F O’Grady attached to CFMEU submission of 25 October 2012.
58 CFMEU Reply Submissions, at p.22. 
59 CCIWA submission of 21 September 2012, attachment.
60 CCIWA submission of 21 September 2012, attachment.
61 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3.
62 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at p. 2.
63 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at p. 4 and Statement of 

Mr Asplin, at para 7.
64 The Chamber of Minerals and Energy of Western Australia: WA State Growth Outlook April 2011.
65 Evidence of Mr Asplin, at paras 8-12, Mr McLaughlan, at para 7 and Mr Pallot at paras 10 and 11.
66 AE891823.
67 [2012] FWAA 1525.
68 Statement of Mr Asplin, at para 16.
69 Statement of Mr O’Grady, at para 8. 
70 Statement of Mr O’Grady, at para 9.
71 Statement of Mr Pallot, at para 7.
72 Statement of Mr O’Grady, at para 10. 
73 Statement of Mr Ingham, at paras 8–9. 
74 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.1. 
75 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.1.
76 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
77 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
78 Statement of Daniel Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, Appx A at Question 5.12.
79 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, Appx A at Question 5.13.
80 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
81 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.4.
82 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.4.
83 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.7.
84 Transcript, at para 1363.
85 CCIWA supplementary submission 29 November 2012, at paras 3–4.
86 CCIWA supplementary submission 29 November 2012, at para 5.
87 For example, clause 8.3(g) of the MJHJV (John Holland) Ichthys Onshore Construction Greenfields Agreement 

[AE891823] and the ATCO Structures and Logistics Pty Ltd Curtis Island LNG Project Greenfield Agreement 2011-2014
[AE886283] in Appendix 2. The Carr Civil Construction Pty Ltd Pluto Project Greenfields Agreement 2008 [AC319455] 
has an overtime provision with a similar effect in clause 25(1).








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88 For example clauses 4.9(f) and (k) of the Downer EDI Works Pty Ltd Warramboo Project AWU Greenfields Agreement 

2011 [AE889126], clause 31.3 of the CBI Constructors Pty Ltd – AMWU – Gorgon Project – Barrow Island Greenfields 
Agreement 2010 [AE883484] and clause 18(a)(ii) of Appendix 7 of the Carr Civil Construction Pty Ltd Pluto Project 
Greenfields Agreement 2008 [AC319455], clause 17.1(g) of the Southern Seawater Desalination Project Stage 2, AWU 
Kulin Group Pty Ltd Construction Greenfields Agreement 2011 [AE891037], clause 16.8 of the Pilbara Logistics - FMG 
Port Expansion Project AMWU Enterprise Agreement 2011 [AE886436], clause 4.9(k) of the Powerlines Plus Pty Ltd 
Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011 [AE888672], clause 4.9(k) of the O’Donnell Griffin Pty 
Ltd Western Turner Brockman Project AWU Greenfields Agreement 2012 [AE893738], clause 4.9(k) of the Macmahon 
Cape Lambert CFMEU Greenfields Agreement 2011 [AE885726], clause 16.11 of the Zinfra Contracting Pty Ltd - FMG 
Solomon Project AWU Greenfields Agreement 2012 [AE894374] and clause 3.8.2(d) of the Karara Iron Ore 
Construction Project (Mine and Other Infrastructure) Carn Construction Industrial Ltd AWU Greenfields Agreement 
2011 [AE890075].

89 See clause 31.1(a) of the Carr Civil Construction Pty Ltd Pluto Project Greenfields Agreement 2008 [AC319455] and 
clause 3.13(f) and (k) of the Monadelphous Engineering Associates Pty Ltd BHPB Iron Ore Growth Projects Stage 1 
AWU Greenfields Agreement [2012] [AE891191] for example.

90 See clause 8.2(a)(iv) of the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields Agreement 
2012 [AE892943], clause 9.1(c) of the ATCO Structures and Logistics Pty Ltd Curtis Island LNG Project Greenfield 
Agreement 2011-2014 [AE886283] and clause 8.2(3) of the GB Industries Electrical Contractors Pty Ltd South Walker 
Creek Project Union Greenfields Agreement [2011] [AE888230]. 

91 See clause 10.4(b) of the Bechtel Hay Point Expansion 3 Project Union Greenfields Agreement [2011] [AE883279], the 
GB Industries Electrical Contractors Pty Ltd South Walker Creek Project Union Greenfields Agreement [2011] 
[AE888230] and clause 9.5(c) of the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields 
Agreement 2012 [AE892943], for example. 

92 AC324534.
93 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at Question 5.12 at p. 13.
94 Transcript, at para 1175.
95 [2009] AIRCFB 345. 
96 [2009 AIRCFB 450.
97 [2009] AIRCFB 645.
98 [2009] AIRCFB 450, at para 7.
99 CCIWA application, Attachment 4.
100 CCIWA application, Attachment 4.
101 [2009] AIRCFB 826, at para 178.
102 [2009] AIRCFB 865, at paras 249-251 and [2009] AIRCFB 945, at paras 195-197.
103 [2009] AIRCFB 958.
104 [2009] AIRCFB 450, at para 7.
105 Transcript, at para 1152.
106 CCIWA application, attachment 4.
107 MA000032. 
108 MA000025.
109 MA000036.
110 [2012] FWAFB 5600.
111 AMWU submission of 25 October 2012.
112 CCIWA application, at para 63. 
113 [2012] FWAFB 5600, at paras 102 and 103.
114 Transcript, at para 1690.
115 MA000057.
116 MA000054.
117 MA000071.








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118 MBA submission of 7 March 2012, attending its application to vary the Building On-site Award, at para 8.1.
119 MA000057.
120 MA000054.
121 Statement of Mr Perumal attached to ABI submission of 9 October 2012, at para 8.
122 [2009] AIRCFB 345, at para 71.
123 [2009] AIRCFB 826, at para 39.
124 CFMEU submissions dated 12 June 2009; Boral further submissions in AM2008/29, dated 14 April 2009.
125 [2009] AIRCFB 450, at para 25. 
126 MA000071.
127 Filed with HIA submissions of 21 September 2012. 
128 Clause 17.1 and Schedule B of the Timber Industry Award 2010 [MA000071]. 
129 MA000029. 
130 MA000101.
131 HIA application of 12 March 2012.
132 [2008] AIRCFB 1000 at paras 28–30.
133 Transcript, at para 360.
134 HIA application of 12 March 2012, at para 38.
135 MA000010. 
136 Transcript, at para 355.
137 HIA submissions of 21 September 2012, at paras 3.1.7 to 3.1.12.
138 Section 47 of the Fair Work Act 2009.
139 Section 143 of the Fair Work Act 2009.
140 [2008] AIRCFB 717, at para 7.
141 [2008] AIRCFB 1000, at para 28.
142 [2008] AIRCFB 717, at para 7.
143 [2009] AIRCFB 450, at para 25.
144 [2009] AIRCFB 826, at para 39.
145 [2009] AIRCFB 865, at para 80 and [2009] AIRCFB 945, at paras 61–62.
146 [2008] AIRCFB 1000, at para 23.
147 Statement re Making of Priority awards [2008] AIRCFB 717, at paras 6–14 and decision re Making of Priority awards 

[2008] AIRCFB 1000, at paras 12–33.
148 Reflected in the decision re Making of Priority awards [2008] AIRCFB 1000, at para 23.
149 [2008] AIRCFB 717.
150 [2008] AIRCFB 1000.
151 Exhibit HIA 1.
152 Transcript at para 672. 
153 Transcript at para 671. 
154 Print H4000 at pp 14–15.
155 [2009] AIRCFB 989, at paras 30-32.
156 Transcript at para 717.
157 [2009] AIRCFB 50, at para 39. 
158 [2009] AIRCFB 50, at para 44.
159 The Shorter Oxford English Dictionary on Historical Principles, Volume 1.Third Edition.
160 MA000010–covering the previously separately regulated industries of the metal, engineering and associated industries, the 

rubber, plastic and cablemaking industry, the brass, copper and non-ferrous metals industry and the glue and gelatine 
industry. See [2008] AIRCFB 717, at para 56.








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161 Secure Employment Test Case [2006] NSWIRComm 38 at para 52.
162 Print T4991.
163 Print T4991, at para 196.
164 PR919660
165 PR919660.
166 Print T4991.
167 CFMEU submissions of 21 September 2012, at para 5.3.
168 Attached to ABI amended submissions of 9 October 2012.
169 PR919660.
170 Print T4991, at para 123, reflected in the variation affected in the Metal and Engineering and Associated Industries Award

1998 in PR901028.
171 AP789529CRV. 
172 Print T4991, at para 123, reflected in the variation affected in the Metal and Engineering and Associated Industries Award

1998 in PR901028.
173 PR919660.
174 [2009] AIRCFB 50, at para 40. 
175 [2009] AIRCFB 345.
176 [2012] FWAFB 5600.
177 [2009] AIRCFB 345, at paras 80–81.
178 [2009] AIRCFB 345, at paras 77–80.
179 [2009] AIRCFB 345, at para 81.
180 [2009] AIRCFB 345, at para 81.
181 [2008] AIRCFB 1000, at paras 59–60. 
182 PR032004.
183 Statement concerning Stage 2 exposure drafts [2009] AIRCFB 50, at paras 20-21, and decision making Stage 3 Awards, 

[2009] AIRCFB 345, at para 88.
184 [2012] FWAFB 10080. 
185 Exhibit HIA 1.
186 A new Schedule E, dealing part-day public holiday, was added to the award in PR532628 on 21 December 2013, after the 

HIA application was made.
187 In respect of clauses 19.2, 19.4(a), 20.1(d), 20.2(a), 20.2(c), 20.3(a), 20.3(b), 21.1, 21.2, 21.10(a)(vi), 21.11 (subject also 

to amendment to clause 19.3 which is currently payable for all purposes), 21.12 (subject also to amendment to clause 
19.3 which is currently payable for all purposes), 21.13(a) (subject also to amendment to clause 19.3 which is currently 
payable for all purposes), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 21.9, 22.2, 22.3(a)–(n), 22.4, 24.3, 24.5, 24.7(a)–
(b) 24.7(e), 25.2–25.5, 25.7, 25.9 and 26.

188 MBA correspondence of 1 February 2013.
189 HIA correspondence of 21 March, 2013.
190 HIA correspondence of 7 December 2012, in respect of its application to vary clauses 4.9, 4.10(a) and (d), and 

Submissions of 8 March 2012 20.1(d), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 21.9, 22.2(b), 22.2(d)–(j), 22.2(l)–(r), 
22.3(a), 22.3(i)(i), 22.3(i)(ii), 22.3(l) and 22.4(a)–(h).

191 [2009] AIRCFB 50, at para 46 and [2009] AIRCFB 345 at para 43.
192 HIA application, at p. 49.
193 AP790741CRV.
194 HIA Outline of submissions, 21 September 2012 at p. 27.
195 [2012] FWAFB 5600, at paras 86 and 88.
196 [2012] FWAFB 5600.
197 Exhibit HIA 1.








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198 Transcript at paras 1843–1844. 
199 Transcript, at para 1878.
200 HIA Outline of submissions, 21 September 2012 at pp. 24–25.
201 [2009] AIRCFB 50, at para 43.
202 [2009] AIRCFB 989, at para 33.
203 [2009] AIRCFB 989, at para 36.
204 MBA application of 7 March 2012, at para 3.29.
205 (1979) 229 CAR 630, Print E1321. The nature and the history of the provision is also reflected upon by the Federal Court 

Australia Full Court decision in Master Builders’ Association of Victoria v Australian Building Construction Employees’ 
and Builders Labourers’ Federation [1981] FCA 49, at paras 18 and 21. 

206 (1979) 229 CAR 630, at page 634.
207 Sections 8(2) and 47(6) of the Fringe Benefits Tax Assessment Act 1986 (Cth). See also, the Australian Taxation Office 

Miscellaneous Taxation Ruling MT 2024.
208 ABI Attachment to amended submission 9 October 2012 at para 12.
209 Transcript, at para 1987.
210 [2012] FWA 8726.
211 For example, clause 34.3 of the Manufacturing and Associated Industries and Occupations Award 2010

[MA000010].
212 Exhibit HIA 1.
213 [2009] AIRCFB 50, at para 44.
214 MBA application, at para 7.2.
215 Transcript, at para 2049.
216 Statement of Ms L Cooper, attached to HIA submission of 21 September 2012, at para 7.
217 AMWU application at ground 4.
218 PR532213.
219 AP816828CRV. 
220 AW790722.
221 AW819297.

Cases cited by this decision: